Ellis v. Kaye-Kibbey

Full title: RODNEY D. ELLIS, Plaintiff, v. MARILYN A. KAYE-KIBBEY, Defendant

Court: United States District Court, W.D. Michigan, Southern Division

Date published: May 14, 2008

Case No. 1:07-cv-910 (W.D. Mich. May. 14, 2008)

Opinion

Case No. 1:07-cv-910.

May 14, 2008

*Amended Order Denying As Moot the Defendant's Motion to Dismiss the Original Complaint

PAUL MALONEY, District Judge

In September 2007, plaintiff Rodney D. Ellis ("Ellis") filed the original complaint. In December 2007, in lieu of an answer, defendant Marilyn A. Kaye-Kibbey ("Kibbey") filed a motion to dismiss the complaint or in the alternative for summary judgment ("MTD Orig. Comp."). Kibbey contended that the complaint should be dismissed under FED. R. CIV. P. 12(b)(6) for failure to state a claim because "Kibbey cannot be liable for breach of a non-disparagement agreement relating to statements she made as a third-party witness in another lawsuit." MTD Orig. Comp. at 2. Alternatively, Kibbey's motion contended that she is entitled to summary judgment because there is no genuine issue that she revoked the contract on which Ellis's sole claim is based. Id. at 1.

Ellis subsequently filed an amended complaint, accepted for filing by the court on April 10, 2008. "[O]nce accepted, an amended complaint replaces the original." Florida Dept' of State v. Treasure Salvors, Inc., 458 U.S. 670, 702 (1982) (White, J., concurring in part and dissenting in part on other grounds, joined by Powell, Rehnquist, O'Connor, JJ.); see also US v. Goff, 187 F. App'x 486, 492 (6^th Cir. 2006) (Richard Allen Griffin, J.) ("[J]ust as an amended complaint supplants the original complaint and becomes the only live complaint in a civil case. . . .") (citation omitted). The filing of the amended complaint rendered the original complaint "`a nullity.'" B H Med., LLC v. ABP Admin., Inc., ___ F.3d ___, ___, 2008 WL 1958393, *7 n. 8 (6^th Cir. May 7, 2008) (quoting Drake v. City of Detroit, ___ F. App'x ___, ___, 2008 WL 482283, *2 (6^th Cir. 2008)).

"`Once an amended pleading is interposed, the original pleading no longer performs any function in the case.'" B H Med., ___ F.3d at ___, 2008 WL 1958393 at *7 n. 8 (quoting 6 Wright, Miller Kane, FED. PRAC. PROC. § 1476 (2d ed. 1990)).¹ Thus, there is no longer a live dispute² about the propriety or merit of the claims asserted therein; therefore, any motion to dismiss such claims is moot. See ComputerEase Software, Inc. v. Hemisphere Corp., 2007 WL 852103, *1 (S.D. Ohio Mar. 19, 2007) ("Since the amended complaint replaces the original complaint, the motion to dismiss the original complaint is moot. . . ."); Cedar View, Ltd. v. Colpetzer, 2006 WL 456482, *5 (N.D. Ohio Feb. 24, 2006) (Ann Aldrich, U.S.D.J.) (the "earlier motion to dismiss . . . and motion for judgment on the pleadings . . . are denied as moot, as they refer to a version of the complaint that has since been replaced. . . .");³

1 Accord Ramallo Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86, 88 n. 2 ( 1^st Cir. 2007) ("[Plaintiff's] amended complaint completely supersedes his original complaint, and thus the original complaint no longer performs any function in the case.") (citation omitted);
Vadas v. US, ___ F.3d ___, ___, 2007 WL 1288335, *5 n. 4 ( 2d Cir. 2007) (the filing of an amended complaint "render[s] the original complaint null and void. . . .") (adopting party's quotation from district court decision).
Young v. City of Mt. Ranier, 238 F.3d 567, 573 ( 4^th Cir. 2001) (amended pleading renders original pleading of no effect);
Enderwood v. Sinclair Broadcast Group, Inc., 233 F. App'x 793, 800 ( 10^th Cir. 2007) ("an amended complaint ordinarily supercedes the original complaint and renders it of no legal effect") (quoting Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10^th Cir. 1991)).

2 Cf. May v. Sheahan, 226 F.3d 876, 879 (7^th Cir. 2000) ("If these subsequent amended complaints have, in fact, superseded May's original amended complaint, the present appeal would be moot because there would no longer be a live dispute over whether Sheahan is entitled to qualified immunity based on the allegations in the Amended Complaint.").

3 See also Scuba v. Wilkinson, 2006 WL 2794939, *2 (S.D. Ohio Sept. 27, 2006) ("Since the amended complaint replaces the original . . ., motions to dismiss the original complaint are moot.");
Weiss v. Astella Pharma US, Inc., 2006 WL 1285406, *1 n. 1 (E.D. Ky. May 10, 2006) (following amendment of complaint, motions to dismiss the original complaint were moot);
Ky. Press Ass'n, Inc. v. Ky., 355 F. Supp.2d 853, 857 (E.D. Ky. 2005) ("Plaintiff's amended complaint supercedes the original complaint, thus making the motion to dismiss the original complaint moot.") (citing Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6^th Cir. 2000)), app. dis., 454 F.3d 505 (6^th Cir. 2006);

ORDER

Accordingly, defendant's motion to dismiss the original complaint [ docket #14] is DENIED without prejudice as moot.

This order shall not prevent the defendant from filing dispositive motions regarding the amended complaint.

IT IS SO ORDERED.