Opinion
6:23-CV-00855-ADA-JCM
04-29-2024
KEVIN CUPP, Plaintiff, v. NUCOR CORPORATION, Defendant.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant's Motion to Dismiss Plaintiff's Original Complaint (ECF No. 15). For the reasons described below, the Court RECOMMENDS that Defendant's Motion be DENIED.
I. BACKGROUND
Plaintiff sued Defendant for negligence, gross negligence, premises liability, and negligent undertaking. Pl.'s Orig. Compl. (ECF No. 1) at 3-6. Defendant moved to dismiss for failure to state a claim under Rule 12(b)(6) and 8(a). Plaintiff responded. ECF No. 21. After responding, Plaintiff filed his First Amended Complaint. ECF No. 25. Defendant then filed an Answer to Plaintiff's Amended Complaint. ECF No. 27.
II. DISCUSSION
Plaintiff's amended complaint renders the original complaint of no legal effect because the amended complaint does not refer to, adopt, or incorporate by reference the original complaint. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Generally, an amended complaint renders pending motions moot. See Cedillo v. Standard Oil Co. of Tex., 261 F.2d 443 (5th Cir. 1958) (holding that the district court erred in granting an abandoned motion to dismiss). Here, Defendant filed a second motion to dismiss in response to Plaintiff's amended complaint. Accordingly, the Court RECOMMENDS that the Motion to Dismiss be DENIED AS MOOT.
III. CONCLUSION
For the reasons outlined above, the undersigned RECOMMENDS that the Defendant's Motion (ECF No. 15) be DENIED.
IV. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.