Opinion
Civil Case No. 08-cv-00855-LTB.
December 31, 2008
ORDER
This environmental contamination case is before me on Defendant, Brown Group Retail, Inc.'s, Partial Motion to Dismiss [Docket # 9]; Plaintiff's Response [Docket # 18]; and Defendant's Reply [Docket # 19]. While the motion was pending, Plaintiff sought leave of the Court to file an amended complaint [Docket # 32]. Leave was granted and Plaintiff filed a Second Amended Complaint on December 18, 2008 [Docket ## 48, 49]. The Second Amended Complaint contains additional allegations that appear pertinent to Defendant's motion to dismiss. Rather than attempt reconciliation of the present motion — which addressed only the allegations of the First Amended Complaint [Docket # 7] — with the Second Amended Complaint, the Court concludes dismissal without prejudice is the better action. If Defendant believes the Second Amended Complaint does not remedy the inadequacies of the First Amended Complaint, it may file a new motion to dismiss.
Accordingly, Defendant, Brown Group Retail, Inc.'s, Partial Motion to Dismiss [Docket # 9] is DENIED WITHOUT PREJUDICE.