Opinion
Civil Action No. 11-cv-02522-PAB-MEH
02-01-2012
ALEX BURTON, Plaintiff, v. THE BANK OF NEW YORK MELLON TRUST COMPANY, LAW OFFICE OF CASTLE STAWIARSKI, LLC, and DEBRA JOHNSON, in her personal and official capacities, Defendants.
MINUTE ORDER
Entered by Michael E. Hegarty , United States Magistrate Judge, on February 1, 2012.
Before the Court is a Motion to Dismiss by Defendant The Bank of New York Mellon Trust Company ("Mellon") [filed December 22, 2011; docket #50]. Mellon filed the present motion after the Clerk of Court entered default against it (docket #26) and Mellon moved to set aside the entry of default (docket #32), but before the Court ruled on the motion to set aside (docket #72). According to Mellon, the present motion was filed in response to Plaintiff's "amended" complaint (docket #76 at 1 n. 1), which was never accepted by the Court (docket #29) and was subsequently withdrawn (docket #66). Today, Mellon filed a second motion to dismiss, which responds to the operative pleading, Plaintiff's original Complaint, and which succeeds this Court's order setting aside the default (see docket #76). The Court concludes that the second motion to dismiss supercedes the present motion and was filed properly after default was set aside. Accordingly, as the present motion has been superceded, the motion is denied as moot.