Parlier v. Lewis et al

Filing 43

ORDER denying as moot 36 Motion to Strike Amended Counterclaim; granting 40 Motion to Amend/Correct Counterclaim; denying as moot 29 Motion for Entry of Default. Dft Casteen shall file an Amended Answer and Counterclaims(s) on or before 10/10/2014. Signed by Magistrate Judge David Keesler on 10/8/2014. (Pro se litigant served by US Mail.)(cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:14-CV-085-RLV-DCK
JAMES LEE PARLIER, JR., d/b/a Jimmy
Parlier Horse Transport, d/b/a Parlier
Farms, d/b/a Parlier Equine Transport &
Carriages,
Plaintiff,
v.
TIFFANY LEWIS, BRENDA CASTEEN
KANSAS CITY PREMIER PARTMENTS,
INC., MARILYN MEEKER BERNSTEIN
JASON STAHL, MARIA BOGDANOVA
PEIFER, DOES 1 – 10,
Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT on Defendant Brenda Casteen’s “Motion
To Amend Counterclaim” (Document No.

40).

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, the record, and applicable authority, the
undersigned will grant the motion.
BACKGROUND
Plaintiff James Lee Parlier, Jr. (“Plaintiff” or “Parlier”) filed a “Verified Complaint”
(Document No. 2) initiating this action on May 29, 2014. “Defendant Brenda Casteen’s Answer
And Counterclaim” (Document No. 19) were filed on August 11, 2014. Defendant Casteen later
filed an “…Answer And Amended Counterclaim” (Document No. 35) on September 19, 2014.

On October 2, 2014, Plaintiff filed a “Motion To Strike Amended Counterclaim Of
Defendant/Counterclaim-Plaintiff Brenda Casteen” (Document No. 36) asserting that the
deadline for the “…Amended Counterclaim” (Document No. 35) had expired, and that
Defendant Casteen had not sought leave of the Court or written consent of Plaintiff to file the
“…Amended Counterclaim.”

Also on October 2, 2014, Plaintiff filed his “Answer And

Affirmative Defenses To Casteen’s Counterclaim” (Document No. 37). Plaintiff’s “Answer And
Affirmative Defenses To Casteen’s Counterclaim” is in response to “Defendant Brenda
Casteen’s Answer And Counterclaim” (Document No. 19) filed on August 11, 2014
Based on the foregoing, Defendant Casteen then filed a “Motion To Amend
Counterclaim” (Document No. 40) on October 7, 2014. Defendant Casteen’s “Motion To
Amend Counterclaim” (Document No. 40) asserts in pertinent part that she is seeking to amend
as a matter of course within twenty-one (21) days of Plaintiff’s “Answer And Affirmative
Defenses To Casteen’s Counterclaim” (Document No. 37) filed on October 2, 2014.
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).

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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 persuaded that there is sufficient
evidence of prejudice, bad faith, or futility to outweigh the policy favoring granting leave to
amend. After careful consideration of the record and the motions, the undersigned finds that
Defendant Casteen’s motion to amend should be granted.
Therefore, because the undersigned will allow Defendant Casteen to file an Answer And
Amended Counterclaim which supersedes the previous Answer And Counterclaim, the
undersigned

will

deny

Plaintiff’s

“Motion

To

Strike

Amended

Counterclaim

Of

Defendant/Counterclaim-Plaintiff Brenda Casteen” (Document No. 36) as moot.
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

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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-266-FDW, 2007 WL 3224985 at *4 (W.D.N.C. Oct. 30, 2007).
In addition, the undersigned observes that “Plaintiff’s Motion For Entry of Default as to
Defendant Maria Bogdanova Peifer” (Document No. 29) filed on September 15, 2014, is also
pending before the Court. However, on September 18, 2014, the undersigned granted Defendant
Peifer’s “Motion For Extension Of Time To Answer Or Otherwise Plead” (Document No. 33).
(Document No. 34). Moreover, Defendant Maria Bogdanova Peifer’s Answer To Plaintiff’s
Complaint” (Document No. 38) was timely filed on October 3, 2014. As such, the undersigned
will direct that “Plaintiff’s Motion For Entry of Default as to Defendant Maria Bogdanova
Peifer” (Document No. 29) be denied as moot.
CONCLUSION
IT IS, THEREFORE, ORDERED that Defendant Brenda Casteen’s “Motion To
Amend Counterclaim” (Document No. 40) is GRANTED. Defendant Casteen shall file an
Amended Answer and Counterclaim(s) on or before October 10, 2014.1
IT IS FURTHER ORDERED that Plaintiff’s “Motion To Strike Amended
Counterclaim Of Defendant/Counterclaim-Plaintiff Brenda Casteen” (Document No. 36) is
DENIED AS MOOT.
1

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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IT IS FURTHER ORDERED that “Plaintiff’s Motion For Entry of Default as to
Defendant Maria Bogdanova Peifer” (Document No. 29) is DENIED AS MOOT.
SO ORDERED.

Signed: October 8, 2014

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