Mazzariello v. Atlantic Coast Waterproofing, Inc. et al
Filing
29
ORDER dismissing as moot 11 Motion to Dismiss ; affirming 13 Memorandum and Recommendation and Order.. Signed by District Judge Robert J. Conrad, Jr on 6/19/17. (ssh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-00835-RJC-DCK
ARCANGELA MAZZARIELLO,
)
)
Plaintiff,
)
)
v.
)
)
ATLANTIC COAST
)
WATERPROOFING, INC., and
)
FEDERICO JARAMILLO,
)
)
Defendants.
)
____________________________________ )
ORDER
THIS MATTER comes before the Court on Defendant Federico Jaramillo’s Motion To
Dismiss, (Doc. No. 11), and the Magistrate Judge’s Memorandum and Recommendation and
Order (“MR&O”), (Doc. No. 13), granting Plaintiff’s Motion to Amend Complaint and
recommending that this Court deny Defendant Jaramillo’s Motion to Dismiss as moot. The
parties have not filed objections to the MR&O and the time for doing so has expired. FED. R.
CIV. P. 72(b)(2).
I.
BACKGROUND
Plaintiff filed a Complaint, (Doc. No. 1-1), on November 7, 2016 in Mecklenburg County
Superior Court. Defendant Atlantic Coast Waterproofing, Inc. removed the action to this Court
on December 8, 2016, (Doc. No. 1). On January 13, 2017, Plaintiff filed a Motion to Amend
Complaint, (Doc. No. 10), and Defendant Jaramillo filed a Motion to Dismiss, (Doc. No. 11). In
his Memorandum and Recommendation and Order granting Plaintiff’s Motion to Amend, the
Magistrate Judge recommended that this Court deny as moot Defendant Jaramillo’s First Motion
to Dismiss. See (Doc. No. 13). Plaintiff filed her Amended Complaint on January 18, 2017.
(Doc. No. 14).
II.
STANDARD OF REVIEW
The district court may assign dispositive pretrial matters pending before the court to a
magistrate judge for “proposed findings of fact and recommendations.” 28 U.S.C. §
636(b)(1)(B). The Federal Magistrate Act provides that “a district court shall make a de novo
determination of those portions of the report or specific proposed findings or recommendations
to which objection is made.” Id. at § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983). However, “when objections to strictly legal issues are raised and no factual issues are
challenged, de novo review of the record may be dispensed with.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Similarly, de novo review is not required by the statute “when a party
makes general or conclusory objections that do not direct the court to a specific error in the
magistrate judge’s proposed findings and recommendations.” Id. “[I]n the absence of a timely
filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting FED. R. CIV. P. 72 advisory committee’s note).
III.
DISCUSSION
Under Rule 72(b) of the Federal Rules of Civil Procedure, a district court judge shall
make a de novo determination of any portion of an MR&O to which specific written objection
has been made. FED. R. CIV. 72(b). No objection to the MR&O having been filed, the parties
have waived their right to de novo review of any issue covered in the MR&O. Nevertheless, this
Court has conducted a full review of the MR&O and other documents of record and, having done
so, hereby finds that the recommendation of the Magistrate Judge is, in all respects, in
accordance with the law and should be approved.
It is well settled that a timely-filed amended pleading supersedes the original pleading,
and that motions directed at superseded pleadings must be dismissed 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
Collin v. Marconi Commerce Sys. Employees’ Ret. 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
Plaintiff’s filing of the Second Amended Complaint”); Turner v. Kight, 192 F. Supp. 2d 391, 397
(D. Md. 2002) (denying as moot motion to dismiss original complaint on grounds that amended
complaint superseded original complaint). Accordingly, the Court ADOPTS the
recommendation of the Magistrate Judge as its own and DISMISSES as moot Defendant
Jaramillo’s First Motion to Dismiss, (Doc. No. 11).
IV.
CONCLUSION
IT IS, THEREFORE, ORDERED that the Magistrate Judge’s MR&O, (Doc. No. 13),
is ADOPTED and Defendant’s Motion to Dismiss, (Doc. No. 11), is DISMISSED as moot.
Signed: June 19, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?