Opinion
Case No. 00-2474-JWL
January 11, 2001
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to dismiss (Doc. 4) and plaintiff's motion for leave to file first amended petition (Doc. 7). For the reasons set out below, both motions are denied as moot.
Background
On October 18, 2000, defendant Union Pacific Railroad ("Union Pacific") filed a notice of removal with this court regarding a lawsuit filed by plaintiff Chem-Tronics, Inc. ("Chem-Tronics") in Leavenworth County, Kansas district court. The complaint seeks an injunction ordering Union Pacific to stop the removal of a railroad switch and spur track. The plaintiff alleged in the complaint that the defendant had not been granted permission to remove the switch and spur track by the Kansas Corporation Commission ("KCC") and that the removal, therefore, was unlawful under Kansas law. Union Pacific filed a motion to dismiss with this court on October 27, 2000 arguing that the Interstate Commerce Commission Termination Act of 1995 ("ICCTA") preempts state law on rail transportation, including the removal of spur tracks, and that ICCTA grants jurisdiction over removal of spur tracks to the Surface Transportation Board ("STB"). The plaintiff responded to the motion to dismiss by agreeing that the STB and not the KCC has jurisdiction over the matter and asking the court for leave to amend its complaint to reflect that federal law controls. Plaintiff's proposed amendment to the complaint would simply change the allegation that the defendant was not granted permission to remove the track by the KCC to an allegation that the defendant failed to request permission from the STB to remove the track as required by ICCTA.
Discussion
Federal Rule of Civil Procedure 15(a) provides that a party "may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." Fed.R.Civ.P. 15(a). The plaintiff correctly points out that no responsive pleading has been filed. A motion to dismiss is not a responsive pleading within the meaning of Rule 15(a). See Brever v. Rockwell International Corp., 40 F.3d 1119, 1131 (10th Cir. 1994). Chem-Tronics, therefore, has a right to amend the complaint as a matter of course, and there is no need for this court to grant leave. Union Pacific does not address this argument in its response. The motion for leave to amend the complaint and defendant's motion to dismiss, therefore, are moot. To the extent that Union Pacific believes that the plaintiff's amended complaint still does not state a claim upon which relief can be granted, it can file another motion under Federal Rule of Civil Procedure 12(b)(6).
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion to dismiss (Doc. 4) and plaintiff's motion for leave to file first amended petition (Doc. 7) are denied as moot.
IT IS SO ORDERED this ___ day of January, 2001.