Foster et al v. Lowe's Companies, Inc. et al

Filing 30

ORDER AND RECOMMENDATIONS on 19 Partial MOTION to Dismiss Plaintiffs' Complaint filed by Lowe's Companies, Inc. ( Objections to M&R due by 2/15/2017 plus an additional 3 days if served by mail). It is therefore, ORDERED that Plaintiff's 29 Unopposed MOTION for Leave Amend Their Complaint is granted. Signed by Magistrate Judge David Keesler on 1/31/2017. (nvc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:16-CV-161-RLV-DCK
MICHAEL FOSTER and
RONALD BOUCHARD, individually, and for
all others similarly situated,
Plaintiffs,
v.
LOWE'S COMPANIES, INC.; and NILOY
INC. d/b/a DCT SYSTEMS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER AND
RECOMMENDATION

THIS MATTER IS BEFORE THE COURT on “Plaintiffs’ Unopposed Motion For
Leave To Amend Their Complaint” (Document No. 29) filed January 31, 2017, and “Defendant
Lowe’s Companies, Inc.’s Partial Motion To Dismiss Plaintiffs’ Complaint” (Document No. 19)
filed December 29, 2016. The motion to amend 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 motions and the record, and noting that Defendants’ counsel does not oppose the
motion to amend, the undersigned will grant the motion to amend, and recommend the denial of
the motion to dismiss.
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).
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
The undersigned will allow Plaintiff to file an Amended Complaint which supersedes the
original Complaint; therefore, the undersigned will also respectfully recommend that “Defendant
Lowe’s Companies, Inc.’s Partial Motion To Dismiss Plaintiffs’ Complaint” (Document No. 19)
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
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

2

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 “Plaintiffs’ Unopposed Motion For Leave To
Amend Their Complaint” (Document No. 29) is GRANTED. 1
IT IS RESPECTFULLY RECOMMENDED that “Defendant Lowe’s Companies,
Inc.’s Partial Motion To Dismiss Plaintiffs’ Complaint” (Document No. 19) 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,

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.”

3

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 31, 2017

4