Hartford Fire Insurance Company v. RLJ Express, LLC

Filing 37

ORDER denying as moot 18 Motion to Dismiss Third Party Complaint by A & A Machinery Moving, Inc; denying without prejudice 31 Motion to Dismiss Amended Third Party Complaint for Failure to State a Claim by A & A Machinery Moving, Inc. Signed by Magistrate Judge David S. Cayer on 2/20/2018. (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:17-CV-00154-DSC
HARTFORD FIRE INSURANCE
COMPANY,
Plaintiff,
v.
RLJ EXPRESS, LLC,
Defendant.

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ORDER

THIS MATTER is before the Court on Third Party Defendant A & A Machinery Moving,
Inc.’s “Motion to Dismiss [Third Party Complaint]” (document #18) filed December 11, 2017, and
Third Party Defendant A & A Machinery Moving, Inc.’s “Motion to Dismiss [Amended Third
Party Complaint]” (document #31) filed January 9, 2018.
The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636 (c).
These Motions are now ripe for consideration.
On December 27, 2017, Defendant filed an Amended Third Party Complaint as a matter of
right. Fed. R. Civ. P. 15(a)(1)(B)(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”). Accordingly, the Court will deny as moot
Third Party Defendant A & A Machinery Moving, Inc.’s “Motion to Dismiss [Third Party
Complaint]” (document #18). See Young v. City of Mount Ranier, 238 F. 3d 567, 573 (4th Cir.
2001) (amended pleading renders original pleading of no effect and motions directed at superseded
pleadings are to be denied as moot).

For the reasons stated in Defendant/Third Party Plaintiff’s “Memorandum … in Opposition
…” (document #35), Third Party Defendant A & A Machinery Moving, Inc.’s “Motion to Dismiss
[Amended Third Party Complaint]” (document #31) is DENIED WITHOUT PREJUDICE to its
right to renew those arguments following the close of discovery.
The Clerk is directed to send copies of this Order to counsel of record.
SO ORDERED.

Signed: February 20, 2018