Doe v. Pro-Tech Security, Inc. et al

Filing 53

ORDER GRANTING 43 Motion to Amend and DENYING 29 Motion to Dismiss. Signed by Judge Samuel H. Mays, Jr., on 2/28/2011. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

JANE DOE, a minor child, by and through her parent and next friend, KIMBERLA GARRETT, Plaintiff, v. PRO-TECH SECURITY, INC., MUVICO ENTERTAINMENT, L.L.C., MUVICO THEATERS, INC., and ANTHONY WOOTEN, Defendants.

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

No. 10-2483

ORDER GRANTING PLAINTIFF JANE DOE'S MOTION TO AMEND AND DENYING DEFENDANTS MUVICO ENTERTAINMENT, L.L.C., AND MUVICO THEATERS, INC.'S MOTION TO DISMISS

Before the Court is the August 20, 2010 Motion to Dismiss for Failure to State a Claim ("Motion to Dismiss") filed by Defendants Muvico Entertainment, L.L.C., and Muvico Theaters, Inc. ("Muvico"). (See Muvico Theaters, Inc. and Muvico

Entertainment, LLC's Mot. to Dismiss for Failure to State a Claim, ECF No. 29.) 2010 Motion for Before the Court is also the December 1, to File Amended Complaint filed by

Leave

Plaintiff Jane Doe, a minor child, by and through her parent and next friend, Kimberla Garrett ("Doe"). File Am. Compl., ECF No. 43.) (See Mot. for Leave to

Muvico responded in opposition to

Doe's Motion for Leave to File Amended Complaint on January 13,

2011.

(See

Muvico

Theaters,

Inc.

and

Muvico

Entertainment,

LLC's Resp. in Opp'n to Pl.'s Mot. for Leave to File Am. Compl., ECF No. 46 ("Muvico Resp.").) Defendant Pro-Tech Security, Inc.

("Pro-Tech") responded in opposition to Doe's Motion for Leave to File Amended Complaint on January 14, 2011. Tech's Resp. Opposing Mot. to Amend, ECF No. (See Def. Pro47 ("Pro-Tech

Resp.").)

Defendant Anthony Wooten ("Wooten") did not respond (See Mins., ECF No.

and has not yet answered Doe's Complaint. 36.) Doe replied on January 28, 2011.

(See Pl.'s Reply Br. in

Supp. of Mot. for Leave to File Am. Compl., ECF No. 51 ("Pl.'s Reply").) Doe correctly argues in her reply that Muvico, Pro-Tech, and Wooten (collectively, "Defendants") have not complied with Local Rule 7.2(a)(2). (See id. at 2-3.) Under Local Rule

7.2(a)(2), a response to a motion, unless the motion is pursuant to Federal Rule of Civil Procedure 12(b) or 56, "shall be filed within fourteen days after service of the motion . . . ." Tenn. Civ. R. 7.2(a)(2). motion, other than one W.D.

"Failure to respond timely to any requesting dismissal of a claim or

action, may be deemed good grounds for granting the motion." Id. Doe filed her Motion for Leave to File Amended Complaint on December 1, 2010, but Muvico did not respond until January 13, 2011, Pro-Tech did not respond 2 until January 14, 2011, and

Wooten did not respond at all.

(See Mot. for Leave to File Am. Because Doe's

Compl. 3.; Muvico Resp. 21; Pro-Tech Resp. 4.)

motion was pursuant to Federal Rule of Civil Procedure 15, Local Rule 7.2(a)(2) required Defendants to respond within fourteen days. so. See W.D. Tenn. Civ. R. 7.2(a)(2). Defendants did not do They have offered Because the

(See Muvico Resp. 21; Pro-Tech Resp. 4.)

no explanation for the delay in their responses.

deadline to amend pleadings was January 15, 2011, and Defendants did not respond until one day and two days before that deadline, they essentially deprived Doe of the opportunity to attempt to amend her pleadings if the Court were to deny her Motion for Leave to File Amended Complaint. No. 52.) Under Local Rule 7.2(a)(2), the Court regards Defendants' failure to respond timely as grounds for granting Doe's Motion for Leave to File Amended Complaint. See W.D. Tenn. Civ. R. (See Scheduling Order 1, ECF

7.2(a)(2); Overton v. Univ. of Tenn., No. 2:08-CV-02796-BBD dkv, 2010 WL 1417957, at *2-3 (W.D. Tenn. Mar. 18, 2010), adopted, 2010 WL 1417952 (W.D. Tenn. Apr. 6, 2010); McNabb v. City of Memphis, No. 03-2334 ML/P, 2004 WL 2384958, at *3 (W.D. Tenn. Mar. 8, 2004). Complaint Therefore, is Doe's Motion First for Leave to File

Amended

GRANTED.

The

Amended

Complaint

attached to Doe's Motion for Leave to File Amended Complaint is now the only complaint before the Court. 3

An amended complaint supersedes a prior complaint, making the prior complaint a nullity. See B&H Med., L.L.C. v. ABP

Admin., Inc., 526 F.3d 257, 268 n.8 (6th Cir. 2008) (citations omitted); Drake v. City of Detroit, 266 F. App'x 444, 448 (6th Cir. 2008) 501 (citation F.3d omitted); 1243 Pintando (11th v. Miami-Dade 2007) Hous.

Agency,

1241,

Cir.

(citations

omitted); United States v. Goff, 187 F. App'x 486, 491 (6th Cir. 2006) (citation omitted); In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000) (citation omitted). Because the

Amended Complaint is now the only complaint before the Court, the original complaint filed by Doe is a nullity. Therefore,

Muvico's Motion to Dismiss the original complaint is DENIED AS MOOT. See Polk v. Psychiatric Prof'l Servs., No. 09-cv-799,

2010 WL 1908252, at *2 (S.D. Ohio Mar. 29, 2010), adopted, 2010 WL 1907586 (S.D. Ohio May 12, 2010); Ware v. C.R. Bard, Inc., No. 1:07-cv-172, 2007 WL 2463286, at *2 (E.D. Tenn. Aug. 28, 2007). So ordered this 28th day of February, 2011.

s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE

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