Houck v. LifeStore Bank et al

Filing 43

ORDER granting 35 Motion to Amend/Correct; plfs shall file their Second Amended Complaint within 5 days of this Order; denying as moot 39 Motion to Strike Plf's Response; denying as moot without prejudice 22 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge David S. Cayer on 8/27/2013. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO: 5:13-CV-66-DSC
DIANA LOUISE HOUCK, et. al.,
Plaintiffs,
v.
LIFESTORE BANK, et. al.,
Defendants.

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ORDER
THIS MATTER is before the Court on Defendant Substitute Trustee Services, Inc.’s
“Motion to Dismiss” (document #22), Plaintiffs’ “Motion to Allow Second Amended
Complaint” (document #35), and “Defendant’s … Motion to Strike Plaintiff’s Response … to
Defendant’s … Reply …” (document #39).
The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636 (c).
These Motions are now ripe for determination.
Rule 15 of the Federal Rules of Civil Procedure governs amendments to pleadings. Rule
15(a)(1) grants a party the right to “amend its pleading once as a matter of course,” if done
within twenty-one (21) days after serving the pleading, Fed. R. Civ. P. 15(a)(1)(A), or, “if the
pleading is one to which a responsive pleading is required,” a party may amend once as a matter
of course, provided that it does so within “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)(B). The Rule further provides that “leave [to amend the pleadings] shall be freely given
where justice so requires.” Fed.R.Civ.P. 15(a).

The Court has carefully examined the record, the parties’ arguments, and the applicable
authorities. For the reasons stated in Plaintiffs’ briefs, their Motion to Allow Second Amended
Complaint will be granted.
It is well settled that an amended pleading supersedes the original pleading, and that
motions directed at superseded pleadings are to be denied as moot. Young v. City of Mount
Ranier, 238 F. 3d 567, 573 (4th Cir. 2001) (amended pleading renders original pleading of no
effect); 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dismiss original complaint on grounds that amended complaint superseded original complaint).
IT IS THEREFORE ORDERED THAT:
1.

Plaintiffs’ “Motion to Allow Second Amended Complaint” (document #35) is

GRANTED. Plaintiffs shall file their Second Amended Complaint within five (5) days of this
Order.
2. Defendant Substitute Trustee Services, Inc.’s “Motion to Dismiss” (document #22) is
DENIED as moot without prejudice.
3. “Defendant’s … Motion to Strike Plaintiff’s Response … to Defendant’s … Reply
…” (document #39) is DENIED as moot.
4. The Clerk is directed to send copies of this Order to the parties’ counsel.
SO ORDERED.

Signed: August 27, 2013