Cunningham v. Rapid Capital Funding, LLC/RCF et al

Filing 114

REPORT AND RECOMMENDATION: The Report and Recommendation filed in this matter on July 21, 2017 (Doc. 112) is VACATED and replaced by the following recommendations. The Magistrate Judge RECOMMENDS the amendment be allowed nunc pro tunc and Plaintif f's Second Amended Complaint (Doc. 55) supersede all prior complaints in this matter. Should amendment be permitted, the Magistrate Judge RECOMMENDS Defendants' motions to dismiss Plaintiff's earlier complaints (Docs. 31, 35, 50, 90 ) be TERMINATED AS MOOT and Defendants be GRANTED twenty-eight (28) days to answer or move to dismiss Plaintiff's Second Amended Complaint. Signed by Magistrate Judge Joe Brown on 7/24/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CRAIG CUNNINGHAM,

)
)
Plaintiff,
)
)
v.
)
)
RAPID CAPITAL FUNDING, LLC/RCF, )
et al.,
)
)
Defendants.
)

No. 3:16-cv-02629
Judge Trauger/Brown

To: The Honorable Aleta A. Trauger, United States District Judge
REPORT AND RECOMMENDATION
The Report and Recommendation filed in this matter on July 21, 2017 (Doc. 112) is
VACATED and replaced by the following recommendations.
Plaintiff improperly filed Plaintiff’s Second Amended Complaint (Doc. 55) without
consent of Defendants or leave of the Court. See Fed. R. Civ. P. 15(a)(2). Despite this, several
Defendants have responded to Plaintiff’s Second Amended Complaint. (Docs. 66, 70, 81, 104).
Defendants GIP Technology, GRS Telecom, Paul Maduno, and Ada Maduno waited seven
months to belatedly note this procedural irregularity. (Doc. 113). To simplify matters, and
because Rule 15(a)(2) encourages the Court to freely grant leave to amend, the Magistrate Judge
RECOMMENDS the amendment be allowed nunc pro tunc and Plaintiff’s Second Amended
Complaint (Doc. 55) supersede all prior complaints in this matter.
Should amendment be permitted, the Magistrate Judge RECOMMENDS Defendants’
motions to dismiss Plaintiff’s earlier complaints (Docs. 31, 35, 50, 90) be TERMINATED AS
MOOT and Defendants be GRANTED twenty-eight (28) days to answer or move to dismiss
Plaintiff’s Second Amended Complaint. See Auto-Owners Ins. Co. v. Se. Car Wash Sys., No.
1

1:15-CV-00212, 2016 WL 9132784, at *1 n.1 (E.D. Tenn. May 2, 2016) (terminating as moot a
motion to dismiss that was filed before an amended complaint); Rodgers v. Nestle Prepared
Food Co., No. CIV.A. 5:13-60, 2013 WL 3973173, at *4 (E.D. Ky. Aug. 1, 2013) (same); Glass
v. The Kellogg Co., 252 F.R.D. 367, 368 (W.D. Mich. 2008) (same).
Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen
days, after being served with a copy of this R&R to serve and file written objections to the
findings and recommendation proposed herein. A party shall respond to the objecting party’s
objections to this R&R within fourteen days after being served with a copy thereof. Failure to
file specific objections within fourteen days of receipt of this R&R may constitute a waiver of
further appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985).
ENTERED this 24th day of July, 2017.
/s/ Joe B. Brown
JOE B. BROWN
UNITED STATES MAGISTRATE JUDGE

2