Opinion
2:22-cv-01627-JCM-DJA
10-27-2022
THOMAS ZIRKIN, individually, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation; and USAA GENERAL INDEMNITY COMPANY; a Texas Corporation, Defendants.
HALL JAFFE & CLAYTON, LLP RILEY A. CLAYTON Attorneys for Defendant, State Farm Mutual Automobile Insurance Company SPENCER FANE LLP MARY E. BACON Attorneys for Defendant, USAA General Indemnity Company THE MEDRALA LAW FIRM, PROF. LLC JAKUB P. MEDRALA Attorneys for Plaintiff
HALL JAFFE & CLAYTON, LLP
RILEY A. CLAYTON
Attorneys for Defendant, State Farm Mutual Automobile Insurance Company
SPENCER FANE LLP
MARY E. BACON
Attorneys for Defendant, USAA General Indemnity Company
THE MEDRALA LAW FIRM, PROF. LLC
JAKUB P. MEDRALA
Attorneys for Plaintiff
STIPULATION AND ORDER TO DENY USAA GIC'S MOTION TO DISMISS (DOC. 5) AND STATE FARM'S JOINDER (DOC. 9) AS MOOT
This Stipulation and Order to Deny USAA GIC's Motion to Dismiss Plaintiff's Second Cause of Action and State Farm's Joinder as Moot (hereinafter “Stipulation”) is entered into by Plaintiff, Thomas Zirkin (“Plaintiff”), and Defendant, USAA General Indemnity Company (“USAA GIC”), and Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”) (collectively referred to as the “Parties”).
On September 30, 2022, Defendant USAA GIC filed its Motion to Dismiss Plaintiff's Second Cause of Action and Motion to Strike Plaintiff's Request for Attorney's Fees (Doc. 5). The Motion requested the Court dismiss Plaintiff's tortious breach of the covenant of good faith and fair dealing (“bad faith”) cause of action and strike Plaintiff's request for attorney's fees.
On October 10, 2022, Defendant State Farm Mutual Automobile Insurance Company filed a Joinder to USAA GIC's Motion to Dismiss Plaintiff's Second Cause of Action and Motion to Strike Plaintiff's Request for Attorney's Fees (Doc. No. 9).
On October 17, 2022, Plaintiff Zirkin filed his Response to Defendant USAA GIC's Motion to Dismiss/Strike Attorneys Fees (Doc. 15). Plaintiff stated, in essence, that he would be filing an amended complaint, which eliminated the second cause of action for bad faith, thereby rendering the Motion/Joinder moot. Also on October 17, 2022, Plaintiff filed his First Amended Complaint (Doc. 14). The First Amended Complaint removed Plaintiff's second cause of action for bad faith, making the action solely a UIM breach of contract case. The First Amended Complaint, therefore, renders the Motion to Dismiss (Doc. 5) and the Joinder to the Motion to Dismiss (Doc. 9) moot. See e.g., Barnes v. District of Columbia, 42 F.Supp.3d 111, 117 (D.D.C. 2014)(“[w]hen a plaintiff files an amended complaint as a right . . . the amended complaint becomes the operative pleading . . .any pending motion to dismiss becomes moot.”)
Accordingly, the parties stipulate that the Motion to Dismiss (Doc. 5)/Joinder (Doc. 9) should be denied as “moot.”
IT IS SO STIPULATED.
ORDER
IT IS SO ORDERED.