Opinion
Case No. 8:09-cv-1703-T-33EAJ.
January 29, 2010
ORDER
This cause comes before the Court sua sponte. Plaintiff initiated this case against Defendant on August 20, 2009. (Doc. # 1). On October 16, 2009, Defendant filed a motion to dismiss the complaint. (Doc. # 5). On January 28, 2010, Plaintiff filed an amended complaint (Doc. # 14). Upon due consideration, the Court determines that the amended complaint moots the motion to dismiss.
Rule 15(a) of the Federal Rules of Civil Procedure has been amended and now reads in pertinent part:
(1) A party may amend its pleading once as a matter of course within (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
In this case, the amended complaint was not filed within the time parameters of Rule 15(a)(1), and was not filed with the consent of opposing counsel or leave of Court pursuant to Rule 15(a)(2). Nonetheless, because Rule 15 of the Federal Rules of Civil Procedure and Foman v. Davis, 371 U.S. 178, 182 (1962) mandate that leave to amend be freely given, the Court will allow the amendment. The Court grants leave to amend and determines that the motion to dismiss has been rendered moot by the filing of an amended complaint. The Court has not reached the merits of the motion to dismiss, and Defendant may re-raise any pertinent arguments asserted therein.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED: DENIED WITHOUT PREJUDICE AS MOOT.
(1) Defendant's Motion to Dismiss (Doc. # 5) is DONE and ORDERED in Chambers in Tampa, Florida.