Lemberger v. Union Pacific Railroad Company

Filing 21

ORDER signed by Judge J.P. Stadtmueller on 8/11/2017 DENYING as moot and without prejudice 8 Defendant's Motion to Dismiss Plaintiff's Complaint. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DANIEL LEMBERGER,
Plaintiff,
v.
UNION PACIFIC RAILROAD
COMPANY,

Case No. 17-CV-649-JPS

ORDER

Defendant.
On May 5, 2017, the plaintiff filed a complaint pursuant to the
Federal Employers’ Liability Act, 45 U.S.C. § 51, alleging that he developed
leukemia as a result of being exposed to toxic substances during his
employment as a welder for the defendant, Union Pacific Railroad
Company. (Docket #1 at 1-2). On June 12, 2017, the defendant filed a motion
to dismiss the complaint for failure to state a claim, pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Docket #8). On July 6, 2017, in lieu of
responding to the motion, the plaintiff filed an amended complaint. (Docket
#14).1 The defendant answered the amended complaint on July 20, 2017.
(Docket #16). When an amended complaint is filed, it becomes controlling
and the prior pleading is withdrawn. Johnson v. Dossey, 515 F.3d 778, 780
(7th Cir. 2008). Thus, the plaintiff’s amended complaint governs this case,

Federal Rule of Civil Procedure 15 allows a party to “amend its pleading
once as a matter of course within … 21 days after service of a motion under Rule
12(b)[].” Fed. R. Civ. P. 15(a)(1). Here, the magistrate judge previously assigned to
this case granted the plaintiff’s motion to extend this deadline to July 7, 2017.
(Docket #11).
1

and the defendant’s motion to dismiss the original complaint will be denied
as moot.
Accordingly,
IT IS ORDERED that the defendant Union Pacific Railroad
Company’s motion to dismiss the complaint (Docket #8) be and the same is
hereby DENIED as moot and without prejudice.
Dated at Milwaukee, Wisconsin, this 11th day of August, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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