Simpson Performance Products, Inc. v. NecksGen Inc.

Filing 15

ORDER and MEMORANDUM AND RECOMMENDATIONS: ORDER granting 14 Unopposed MOTION for Extension of Time to Answer or Otherwise Move in Response to Amended Complaint (Dkt. 12), and Necks Gen Inc. answer due 1/25/2017. RECOMMENDATION to the District Judge that the 11 MOTION to Dismiss for Failure to State a Claim filed by NecksGen Inc. be denied as moot ( Objections to M&R due by 1/17/2017 plus an additional 3 days if served by mail). Signed by Magistrate Judge David Keesler on 1/3/17. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:16-CV-153-RLV-DCK
SIMPSON PERFORMANCE PRODUCTS, INC.,

Plaintiff,
v.

NECKSGEN INC.,
Defendant.

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ORDER AND
RECOMMENDATION

THIS MATTER IS BEFORE THE COURT on Defendant’s “Unopposed Motion For
An Extension Of Time To Answer Or Otherwise Move” (Document No. 14) filed January 3, 2017.
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 consent of Plaintiff’s counsel, the undersigned will grant the motion.
Based on the filing of Plaintiff’s “Amended Complaint” (Document No. 12) on December
28, 2016, the undersigned will also respectfully recommend that “Defendant’s Motion To
Dismiss…” (Document No. 11) filed on December 14, 2016, be denied 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at superseded pleadings may be denied as moot.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.”).
IT IS, THEREFORE, ORDERED that Defendant’s “Unopposed Motion For An
Extension Of Time To Answer Or Otherwise Move” (Document No. 14) is GRANTED.

Defendant shall have up to and including January 25, 2017 to answer or otherwise respond to
Plaintiff’s Amended Complaint (Document No. 12).
IT IS RECOMMENDED that “Defendant’s Motion To Dismiss…” (Document No. 11)
be DENIED AS MOOT.
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
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: January 3, 2017

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