Julka v. Standard Insurance Company

Filing 23

ORDER denying as moot 20 Motion for Extension of Time and 11 Motion to Dismiss ; granting 19 Motion to Amend Complaint. The amended complaint is the operative pleading in this case Signed by Chief Judge Barbara B. Crabb on 12/16/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------P ET E R JULKA, ORDER Plaintiff, 0 9 -c v -5 3 4 -s lc 1 v. S T AN D A R D INSURANCE COMPANY, D efendan t. --------------------------------------------Plaintiff Peter Julka filed this civil suit in the Circuit Court for Dane County, W iscon sin, asserting a promissory estoppel claim against defendant Standard Insurance Co m pany. On August 26, 2009, defendant removed the case to this court, asserting that this court has jurisdiction under 28 U.S.C. § 1331 because plaintiff's action is governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 (ERISA). On O ctober 10, 2009, defendant filed a motion to dismiss the complaint, contending that plain tiff's state law claim is completely preempted by ERISA. Plaintiff has missed multiple

While this court has a judicial vacancy, it is assigning 50% of its caseload automatically to Magistrate Judge Stephen Crocker. The parties have not consented yet to the magistrate judge's jurisdiction. For the purpose of issuing this opinion and order, I am assuming jurisdiction over this case.

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deadlines by which he should have filed his brief in opposition. In an order dated November 25 , 2009, dkt. #17, I warned him that if he did not file an amended complaint or brief in o ppo sitio n to defendant's motion to dismiss by December 10, 2009, his complaint would be dismissed for failure to prosecute. Now plaintiff has filed an amended complaint, dkt. #19, in which he raises three state law claims, including one based on promissory estoppel and another on ERISA. I will accept plaintiff's amended complaint as the new operative pleading in this case. Also, plaintiff has filed a motion for extension of time, dkt. #20, in which to respond to defendants' motion to dismiss. Now that plaintiff has filed an amended complaint, defendant's motion to dismiss is moot. National Pork Producers Council v. Jackson, 09-cv73 -slc, 2009 WL 1255557, *1 (W.D. Wis. May 1, 2009) ("Because plaintiffs' amended co m p lain t is now the operative pleading, the motion to dismiss plaintiffs' original complaint is now moot."). I will deny plaintiff's motion for an extension of time as moot. Defendant is free to file a new motion to dismiss plaintiff's amended complaint.

ORDER IT IS ORDERED that 1. Plaintiff Peter Julka's motion to amend his complaint, dkt. #19, is GRANTED. T he amended complaint is the operative pleading in this case.

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2 . Defendant Standard Insurance Company's motion to dismiss, dkt. #11, and p lain tiff's motion for an extension of time to file a brief in opposition to defendant's motion to dismiss, dkt. #20, are DENIED as moot. E n tered this 16t h day of December, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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