Opinion
Civil Action No. 7:18-1407-DCC-KFM
09-21-2018
Darrel Stamper, Plaintiff, v. Medi Credit, Inc., Defendant.
ORDER AND REPORT OF MAGISTRATE JUDGE
This matter is before the court on the plaintiff's motion to amend (doc. 27) and the defendant's motion to dismiss (doc. 21). In his complaint, the plaintiff, who is proceeding pro se, alleges the defendant placed calls using an automatic telephone dialing system in violation of the Telephone Consumer Protection Act ("TCPA") (doc. 1 at 1). See 47 U.S.C. § 227.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters involving litigation by individuals proceeding pro se and submit findings and recommendations to the district court.
Service of process was authorized by this court on June 6, 2018, and the defendant was served on July 20, 2018 (docs. 12, 17). The defendant filed a motion to dismiss for failure to state a claim or for more definite statement on August 25, 2018 (doc. 21-1). On that same date, the defendant filed a motion for leave to file a responsive pleading out of time (doc. 22), which was granted by the undersigned on September 4, 2018 (doc. 25). On August 29, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately to the defendant's motion (doc. 23). On September 6, 2018, the plaintiff filed a motion to amend his complaint along with a copy of his proposed amended complaint (docs. 27, 27-1). The defendant filed a response in opposition on September 20, 2018 (doc. 28).
The defendant's answer or other responsive pleading was due by August 10, 2018 (doc. 17). --------
Pursuant to Federal Rule of Civil procedure 15(a), a plaintiff may amend his pleading once a matter of course, meaning without the opposing party's consent or the court's leave, within 21 days after serving the pleading or within 21 days after service of a responsive pleading or service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a). The plaintiff here filed his motion to amend within the required time period. Accordingly, he may file his amended complaint as a matter of course.
Furthermore, a timely filed amended pleading supersedes the original pleading. Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) ("As a general rule, 'an amended pleading ordinarily supersedes the original and renders it of no legal effect.'" (quoting Crysen/Montenay Energy Co. v. Shell Oil Co., 226 F.3d 160, 162 (2d Cir. 2000)); see also Ohio River Vally Env. Coalition, Inc. v. Timmermeyer, 77 F. App'x 468, 471 (4th Cir. 2003) (finding that once an amended pleading is interposed, the original complaint "no longer performs any function in the case"); 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2011) ("A pleading that has been amended . . . supersedes the pleading it modifies . . . . Once an amended pleading is interposed, the original pleading no longer performs any function in the case . . . ."). As a result, motions directed at the superseded pleading generally are to be denied as moot. See, e.g., McCoy v. City of Columbia, C.A. No. 3:10-132-JFA-JRM, 2010 WL 3447476, at *1-2 (D.S.C. Aug. 31, 2010) (adopting the magistrate judge's report and recommendation to the extent it recommended that the motion to dismiss be found as moot because the amended complaint superseded the original complaint and rendered any attack upon it moot).
Based upon the foregoing, the Clerk of Court is directed to file the plaintiff's proposed amended complaint (doc. 27-1) as his amended complaint. Moreover, the motion to amend (doc. 27) is moot, as no motion was required for the filing of the amended complaint.
Furthermore, IT IS RECOMMENDED that the district court find the defendant's motion to dismiss (doc. 21) moot. Should the district court adopt this recommendation, a new motion to dismiss is required should the defendant seek to challenge the amended complaint.
IT IS SO ORDERED AND SO RECOMMENDED. September 21, 2018
Greenville, South Carolina
s/ Kevin F. McDonald
United States Magistrate Judge