Thompson v. Village of Phillipsburg, Ohio et al

Filing 38

REPORT AND RECOMMENDATION THAT DEFENDANTS FIRST MOTION TO DISMISS DIRECTED TO THE NOW SUPERSEDED ORIGINAL COMPLAINT (DOC. 9 ) BE DENIED AS MOOT. Objections to R&R due by 5/14/2019. Signed by Magistrate Judge Michael J. Newman on 4/30/2019. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KRISTINA THOMPSON,
Plaintiff,

Case No. 3:18-cv-214

vs.
VILLAGE OF PHILLIPSBURG, et al.,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendants.
_____________________________________________________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT DEFENDANTS’ FIRST MOTION TO
DISMISS DIRECTED TO THE NOW SUPERSEDED ORIGINAL COMPLAINT
(DOC. 9) BE DENIED AS MOOT
_____________________________________________________________________________________________________________________

This civil case is before the Court on the first motion to dismiss filed by Defendants the Village
of Phillipsburg and Chief of Police Mark Wysong. Doc. 9. In that motion, Defendants seek dismissal
of the second and third causes of action set forth in Plaintiff’s original complaint pursuant to Fed. R.
Civ. P. 12(b)(6). Id. at PageID 52. Following the filing of Defendants’ first motion to dismiss, Plaintiff
moved to amend the complaint and, without objection, such motion was granted by the undersigned.
Docs. 29, 33. As a result, the amended complaint superseded the original and the original complaint
is now a nullity as a matter of law. See Drake v. City of Detroit, Mich., 266 F. App’x 444, 448 (6th
Cir. 2008). Because Defendants’ motion to dismiss is directed to Plaintiffs’ original complaint, the
undersigned RECOMMENDS that Defendants’ first motion to dismiss (doc. 9) be DENIED AS
MOOT. See Laning v. Doyle, No. 3:14–cv–24, 2014 WL 2805240, at *1–2 (S.D. Ohio June 20, 2014).
Defendants’ second motion to dismiss (doc. 36) -- which is directed to Plaintiff’s recently filed
amended complaint (doc. 35) -- shall remain pending for decision by the Court.

Date:

April 30, 2019

1

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within FOURTEEN days after being served with this
Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served
on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report
and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS
by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to file objections
by filing a motion for extension, which the Court may grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation objected to,
and shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the
objecting party shall promptly arrange for the transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being served
with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. P. 6(d) if
served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this
Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN
DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.
1981).