Barrow v. Branch Banking & Trust Company

Filing 13

ORDER granting 11 Unopposed MOTION to Amend/Correct 10 Response in Opposition to Motion, and Certificate of Service. Plaintiff shall file its Amended Complaint on or before November 30, 2016. MEMORANDUM AND RECOMMENDATIONS on 6 MOTION to Dismiss Plaintiff's Complaint filed by Branch Banking & Trust Company ( Objections to M&R due by 12/12/2016). Signed by Magistrate Judge David Keesler on 11/23/16. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:16-CV-675-RJC-DCK
RASHECA BARROW,
Plaintiff,
v.
BRANCH BANKING & TRUST COMPANY,
Defendant.

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ORDER AND MEMORANDUM
AND RECOMMENDATION

THIS MATTER IS BEFORE THE COURT on “Plaintiff’s Motion To Amend
Complaint” (Document No. 11) filed on November 21, 2016, pursuant to Fed.R.Civ.P. 15(a)(2).
This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b),
and immediate review is appropriate. Having carefully considered the motion and the record, and
noting that Defendant does not object, the undersigned will grant the motion.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 15 applies to the amendment of pleadings and allows a
party to amend once as a matter of course within 21 days after serving, or “if the pleading is one
to which a responsive pleading is required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P.
15(a)(1). Rule 15 further provides:
(2) Other Amendments. In all other cases, a party may amend its
pleading only with the opposing party’s written consent or the
court's leave. The court should freely give leave when justice so
requires.
Fed.R.Civ.P. 15(a)(2).

Under Rule 15, a “motion to amend should be denied only where it would be prejudicial,
there has been bad faith, or the amendment would be futile.” Nourison Rug Corporation v.
Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77
(4th Cir. 2001)); see also, Foman v. Davis, 371 U.S. 178, 182 (1962). However, “the grant or
denial of an opportunity to amend is within the discretion of the District Court.” Pittston Co. v.
U.S., 199 F.3d 694, 705 (4th Cir. 1999) (quoting Foman, 371 U.S. at 182).
DISCUSSION
It appears that there has been no initial attorney’s conference and that no discovery has
taken place thus far. Furthermore, the undersigned is not aware of any prejudice, bad faith, or
futility that would outweigh the policy favoring granting leave to amend.
Therefore, because the undersigned will order Plaintiff to file an Amended Complaint
which will supersede the original Complaint, the undersigned will respectfully recommend that
“Defendant’s Partial Motion To Dismiss Plaintiff’s Complaint” (Document No. 6) be denied as
moot. This recommendation is without prejudice to Defendant filing a renewed motion to dismiss
the Amended Complaint, if appropriate.
It is well settled that a timely-filed amended pleading supersedes the original pleading, and
that motions directed at superseded pleadings may be denied as moot. Young v. City of Mount
Ranier, 238 F. 3d 567, 573 (4th Cir. 2001) (“The general rule ... is that an amended pleading
supersedes the original pleading, rendering the original pleading of no effect.”); see also, Colin
v. Marconi Commerce Systems Employees’ Retirement Plan, 335 F.Supp.2d 590, 614 (M.D.N.C.
2004) (“Earlier motions made by Defendants were filed prior to and have been rendered moot by
Plaintiffs’ filing of the Second Amended Complaint”); Turner v. Kight, 192 F.Supp. 2d 391, 397
(D.Md. 2002) (quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

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Practice and Procedure § 1476 (2d ed. 1990) (“A pleading that has been amended ... supersedes
the pleading it modifies .... Once an amended pleading is interposed, the original pleading no
longer performs any function in the case.”)); Brown v. Sikora and Associates, Inc., 311 Fed.Appx.
568, 572 (4th Cir. Apr. 16, 2008); and Atlantic Skanska, Inc. v. City of Charlotte, 3:07-CV-266FDW, 2007 WL 3224985 at *4 (W.D.N.C. Oct. 30, 2007).
CONCLUSION
IT IS, THEREFORE, ORDERED that “Plaintiff’s Motion To Amend Complaint”
(Document No. 11) is GRANTED. Plaintiff shall file its Amended Complaint on or before
November 30, 2016. 1
IT IS RESPECTFULLY RECOMMENDED that “Defendant’s Partial Motion To
Dismiss Plaintiff’s Complaint” (Document No. 6) be DENIED AS MOOT, without prejudice to
re-file.
TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14) days
of service of same. Responses to objections may be filed within fourteen (14) days after service
of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and
Recommendation with the District Court constitutes a waiver of the right to de novo review by the
District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005). Moreover, failure

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The Administrative Procedures Governing Filing and Service by Electronic Means, revised
January 1, 2012, at Part II, Section A, Paragraph 8, provide that: “If filing a document requires leave of
the Court, such as an amended complaint, the attorney shall attach the proposed document as an exhibit to
the motion according to the procedures in IV. If the Court grants the motion, the filer will be responsible
for electronically filing the document on the case docket.”

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to file timely objections will preclude the parties from raising such objections on appeal. Diamond,
416 F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Snyder v. Ridenhour, 889
F.2d 1363, 1365 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), reh’g denied, 474
U.S. 1111 (1986).
SO ORDERED AND RECOMMENDED.

Signed: November 23, 2016

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