Opinion
Case No. 12-61278-Civ-SCOLA
08-09-2012
FAUSTA VIRGILE, et al., Plaintiffs, v. THE BANK OF NEW YORK MELLON, et al., Defendants.
ORDER DENYING MOTION TO DISMISS AS MOOT
THIS MATTER is before the Court on the Defendants' Motion to Dismiss [ECF No. 8], filed on July 23, 2012. Subsequently, on August 9, 2012, the Plaintiff filed an Amended Complaint [ECF No. 12].
Federal Rule of Civil Procedure 15(a) allows a party to amend the pleadings "once as a matter of course" if done within "21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b)," whichever comes first. Fed. R. Civ. P. 15(a)(1)(B). "For purposes of this Rule, a motion to dismiss is not a responsive pleading." Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007).
Here, the Plaintiff filed the Amended Complaint 18 days after Defendants filed their Motion to Dismiss. Therefore, Plaintiff's amendment must be allowed as a matter of course, and does not require permission from the Court. "When the plaintiff has the right to file an amended complaint as a matter of course," which is the case here, "the plain language of Rule 15(a) shows that the court lacks the discretion to reject the amended complaint[.]" See id. at 1293 n.6 (emphasis original).
Further, because Plaintiff's Amended Complaint supersedes the prior Complaint, Defendants' Motion to Dismiss the original Complaint is now moot. See Taylor v. Alabama, 275 F. App'x 836, 838 (Cir. 11th 2008) (noting that when "Plaintiffs amended their complaint," the "Defendants' motion to dismiss became moot").
Therefore, it is hereby ORDERED and ADJUDGED that the Defendants' Motion to Dismiss [ECF No. 8] is DENIED AS MOOT, in light of the newly-filed Amended Complaint.
DONE and ORDERED in chambers, at Miami, Florida August 9, 2012.
______________________
ROBERT N. SCOLA , JR.
UNITED STATES DISTRICT JUDGE
Copies to:
U.S. Magistrate Judge
Counsel of record