Opinion
Case No.: 21-10035
03-02-2021
MARK W. DOBRONSKI, Plaintiff, v. TOTAL INSURANCE BROKERS, LLC and GAVIN DOMINIC SOUTHWELL, Defendants.
Judith E. Levy United States District Judge ORDER DENYING WITHOUT PREJUDICE AS MOOT DEFENDANTS' MOTION TO DISMISS (ECF No. 5)
Plaintiff initiated this pro se Telephone Consumer Protection Act case, which was removed to this Court on January 8, 2021. (ECF No. 1). On January 22, 2021, defendants filed a motion to dismiss Defendant Gavin Dominic Southwell from this case and to dismiss some of the claims against Defendant Total Insurance Brokers, LLC. (ECF No. 5). This motion was referred to the undersigned for report and recommendation. (ECF No. 7). The Court ordered Plaintiff to file a response to the motion by March 2, 2021. In lieu of filing a response, on March 1, 2021, Plaintiff filed an amended complaint. (ECF No. 11).
Without expressing any view as to whether the amended complaint cures the purported deficiencies claimed in the motion to dismiss, the motion to dismiss is DENIED WITHOUT PREJUDICE AS MOOT in light of the filing of the amended complaint. "[A]n amended complaint supercedes all prior complaints." Drake v. City of Detroit, 266 F. App'x 444, 448 (6th Cir. 2008). "It follows that 'motions directed at the superseded pleading,'" such as Defendants' motion here, "'generally are to be denied as moot.'" Nails v. RPI-Section 8 Housing, 2019 WL 1112381, at *4 (E.D. Mich. Mar. 11, 2019) (quoting Heard v. Strange, 2018 WL 4189652, at *2 (E.D. Mich. June 21, 2018) (collecting cases), report and recommendation adopted, 2018 WL 4184633 (E.D. Mich. Aug. 31, 2018) (denying defendant's motion for summary judgment without prejudice as moot); Williams v. Kelly, 2007 WL 2951303, *1 (E.D. Mich. 2007) (Defendants' motion to dismiss denied as moot where the complaint to which it was directed had been superseded by an amended complaint.). The undersigned considers the March 1st amended complaint as filed by right. A complaint may be amended as of right once within 21 days of the filing of a motion to dismiss, Fed. R. Civ. P. 15(a)(1)(B), but the Court gave Plaintiff until March 2, 2021, to file a response, more than 21 days. Thus, despite the fact the amended complaint was filed more than 21 days after the motion was filed, because the Court allowed Plaintiff additional time to respond to the motion, the Court accepts the amended complaint as filed within the as-of-right period.
Defendants are directed to file a responsive pleading to the amended complaint within 21 days of this Order.
IT IS SO ORDERED.
The parties to this action may object to and seek review of this Order, but are required to file any objections within 14 days of service as provided for in Federal Rule of Civil Procedure 72(a) and Local Rule 72.1(d). Any objections are required to specify the part of the Order to which the party objects and state the basis of the objection. When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge. E.D. Mich. Local Rule 72.2. Date: March 2, 2021
s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on March 2, 2021, by electronic means and/or ordinary mail.
s/Kristen MacKay
Case Manager
(810) 341-7850