Opinion
Civil Case No. 11-cv-01089-REB-MJW
11-16-2011
BRIAN EDMOND BATH, Plaintiff, v. EMC MORTGAGE CORPORAITON, and EXPERIAN INFORMATION SOLUTIONS, INC., Defendants.
Judge Robert E. Blackburn
ORDER DENYING AS MOOT MOTION TO DISMISS
Blackburn, J.
This matter is before me sua sponte to consider Defendant EMC Mortgage LLC's Motion To Dismiss First Amended Complaint for Failure To State a Claim Under Fed.R.Civ.P. 12(b)(6) [#35] filed May 31, 2011. With the consent of the magistrate judge, I withdraw the prior reference of this motion (see Memorandum [#36], filed May 31, 2011) and deny the motion to dismiss without prejudice.
"[#35]" is an example of the convention I use to identify the docket number assigned to a specific paper assigned by the court's electronic case filing and management system (CM/ECF) in Criminal Case No. 06-cr-00270-REB. I use this convention throughout this order.
After the motion was filed, plaintiff moved for leave to amend his complaint in "direct response to Defendant EMC's 12(b)(6) motion[.]" (Plaintiff's Motion To Amend Pleadings in Response to EMC's 12(b)(6) Motion at 1 [#58] filed October 5, 2011.) The magistrate judge granted the motion to amend and ordered that the proposed amendment be docketed. (See Order Regarding Plaintiff's Motion To Amend Pleadings in Response to EMC's 12(b)(6) Motion (Docket No. 58) [#68] filed November 15, 2011.)
The filing of an amended complaint moots a motion to dismiss directed at the superceded complaint. See Griggs v. Jornayvaz, 2009 WL 1464408 at *1 (D. Colo. May 22, 2009); United States ex rel. Babb v. Northrop Grumman Corp., 2007 WL 1793795 at *1 (D. Colo. June 19, 2007). Therefore, the motion to dismiss is moot and will be denied without prejudice on that basis.
THEREFORE, IT IS ORDERED as follows:
1. That the order of reference contained in the Memorandum [#36] filed May 31, 2011, is WITHDRAWN with the consent of the magistrate judge; and
2. That Defendant EMC Mortgage LLC's Motion To Dismiss First Amended Complaint for Failure To State a Claim Under Fed.R.Civ.P. 12(b)(6) [#35] filed May 31, 2011, is DENIED WITHOUT PREJUDICE as moot.
Dated November 16, 2011, at Denver, Colorado.
BY THE COURT:
Robert E. Blackburn
United States District Judge