Parker v. Thomas & Betts Corporation et al

Filing 17

ORDER granting 14 MOTION to Amend/Correct Complaint. Plaintiff shall file an Amended Complaint on or before APRIL 3, 2017. RECOMMENDATION re: 9 MOTION to Dismiss Plaintiff's Complaint filed by James Scott, Thomas & Betts Corporation, Larry Huinker, Roxanne Bliss ( Objections to M&R due by 4/6/2017 plus an additional 3 days if served by mail). Signed by Magistrate Judge David Keesler on 3/23/17. (Pro se litigant served by US Mail.)(mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:17-CV-00041-MOC-DCK
ANTHONY PARKER,

Plaintiffs,
v.
THOMAS & BETTS CORPORATION;
LARRY HUINKER; ROXANNE BLISS;
JAMES SCOTT,
Defendants.

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ORDER AND
RECOMMENDATION

THIS MATTER IS BEFORE THE COURT on “Defendants’ Motion To Dismiss
Plaintiff’s Complaint” (Document No. 9) filed March 7, 2017, and “Plaintiff’s Motion To Amend
Complaint” (Document No. 14) filed March 21, 2017. These motions have been referred to the
undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is
appropriate. Having carefully considered the motions, the record, and applicable authority, the
undersigned will grant the motion to amend, and recommend that the pending motion to dismiss
be denied as moot.
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) (emphasis added). 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
Pro se Plaintiff has filed for leave to amend within twenty-one (21) days of service of
Defendants’ Rule 12(b) motion (Document No. 9). Pursuant to Fed.R.Civ.P. 15(a)(1)(B), the
Court will allow Plaintiff to file an Amended Complaint which will supersede the original
Complaint. Furthermore, the undersigned will respectfully recommend that “Defendants’ Motion
To Dismiss Plaintiff’s Complaint” (Document No. 9) be denied as moot. This recommendation is
without prejudice to Defendants 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

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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
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. 14) is GRANTED.1 Plaintiff shall file an Amended Complaint on or before April
3, 2017. Plaintiff’s Amended Complaint should comply with the requirements of Fed.R.Civ.P. 8,
and should attach any relevant EEOC documents including any underlying Charge of
Discrimination and Notice of Right to Sue.
IT IS RESPECTFULLY RECOMMENDED that “Defendants’ Motion To Dismiss
Plaintiff’s Complaint” (Document No. 9) be DENIED WITHOUT PREJUDICE.
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

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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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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
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: March 23, 2017

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