Patton v. Anderson

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CASE NO. 3:23-CV-087-RJC-DCK

TONY PATTON, )

)

Plaintiff, )

)

v. ) ORDER

)

RILEY ANDERSON, JUSTIN KIRKLAND, )

and RICK GREEN, )

)

Defendants. )

)

THIS MATTER IS BEFORE THE COURT on pro se Plaintiff’s “Motion For Extension

Of Time” (Document No. 7) filed May 22, 2023. This motion has been referred to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having

carefully considered the motion and the record, the undersigned will grant the motion.

It appears that pro se Plaintiff seeks an extension of time to respond to “Defendant Justin

Kirkman’s Motion To Dismiss” (Document No. 6). Moreover, pro se Plaintiff has also filed an

“Amended Complaint” (Document No. 8).

The undersigned notes that Defendant Kirkland was granted an extension of time to

respond to the Complaint, and that the Court neglected to issue a “Roseboro Notice,” as is typically

done after a motion is filed to dismiss a pro se Plaintiff’s Complaint. See (Document Nos. 3 and

5); see also Roseboro v. Garrison 528 F.2d 309 (4th Cir. 1975). Under these circumstances the

undersigned will accept pro se Plaintiff’s “Amended Complaint” as timely-filed pursuant to

Fed.R.Civ.P. 15.

Federal Rule of Civil Procedure 15 applies to the amendment of pleadings and allows a

party to amend once as a matter of course within 21 days after serving, or “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.” Fed.R.Civ.P.

15(a)(1). Rule 15 further provides:

(2) Other Amendments. 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.

Fed.R.Civ.P. 15(a)(2).

The undersigned further notes that it is well settled that a timely-filed amended pleading

supersedes the original pleading, and that motions directed at superseded pleadings may be denied

as moot. Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001) (“The general rule ...

is that an amended pleading supersedes the original pleading, rendering the original pleading of

no effect.”); see also, Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017)

(“Because a properly filed amended complaint supersedes the original one and becomes the

operative complaint in the case, it renders the original complaint ‘of no effect.’”); Colin v. Marconi

Commerce Systems Employees’ Retirement Plan, 335 F.Supp.2d 590, 614 (M.D.N.C. 2004)

(“Earlier motions made by Defendants were filed prior to and have been rendered moot by

Plaintiffs’ filing of the Second Amended Complaint”); Brown v. Sikora and Associates, Inc., 311

Fed.Appx. 568, 572 (4th Cir. Apr. 16, 2008); and Atlantic Skanska, Inc. v. City of Charlotte, 3:07-

CV-266-FDW, 2007 WL 3224985 at *4 (W.D.N.C. Oct. 30, 2007).

To the extent Defendants contend the Amended Complaint is deficient, this Order is

without prejudice to Defendants filing a motion to dismiss the Amended Complaint.

IT IS, THEREFORE, ORDERED that pro se Plaintiff’s “Motion For Extension Of

Time” (Document No. 7) is GRANTED. Pro se Plaintiff’s “Amended Complaint” (Document

No. 8) is accepted as timely-filed.

IT IS FURTHER ORDERED that “Defendant Justin Kirkman’s Motion To Dismiss”

(Document No. 6) is DENIED AS MOOT.

SO ORDERED.

Signed: May 22, 2023

David C. Keesler Tw

United States Magistrate Judge et