Opinion
Civ. 2:22-218 MIS/KRS
02-01-2023
AERSALE, INC., Plaintiff, v. THE CITY OF ROSWELL, NEW MEXICO, a New Mexico Municipal Corporation, Defendant.
ORDER HOLDING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION IN ABEYANCE
KEVIN R. SWEAZEA, UNITED STAGES MAGISTRATE JUDGE.
THIS MATTER is before the Court on the presiding judge's Order of Reference, (Doc. 27), referring Defendant's Motion to Dismiss, (Doc. 16), to the undersigned for proposed findings and a recommended disposition. On January 26, 2023, Plaintiff filed an opposed Motion to Amend, (Doc. 29), seeking to amend and supplement its first amended complaint by filing a second amended complaint. In its proposed second amended complaint, Plaintiff seeks to: add two defendants; add allegations about these proposed defendants; add claims under 42 U.S.C. §§ 1983 and 1985; add allegations regarding notice provided to Defendant City of Roswell relevant to Plaintiff's New Mexico Tort Claims Act claims; remove Plaintiff's claim for tortious interference with contract; add an allegation about Plaintiff's complaint filed with the Federal Aviation Administration; and “refine further its remaining counts by expanding its negligence count and modifying the count for declaratory judgment.” (Doc. 29) at 2-3.
If the Motion to Amend is granted, the pending Motion to Dismiss becomes moot. See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (“[A]n amended complaint supersedes an original complaint and renders the original complaint without legal effect.”) (citation omitted); Henry Coffeen III Management, Inc. v. Branch, 2017 WL 4271423, at *3 (D.N.M.) (“A pleading that has been amended under Federal Rule of Civil Procedure 15(a), supersedes the pleading it modifies,” and “motions to dismiss [filed before an amended pleading] are technically moot because they are directed at a pleading that I s no longer operative.”) (citation omitted).
Accordingly, the Court will hold in abeyance its proposed findings and recommended disposition on the Motion to Dismiss, (Doc. 16), pending a ruling on the Motion to Amend, (Doc. 29).
IT IS SO ORDERED.