“The general rule is that filing an amended complaint moots pending motions to dismiss.”
How later courts described this case
- “The general rule is that filing an amended complaint moots pending motions to dismiss.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
) CASE NO. 4:23-cv-803
STEVEN FLACK, )
) JUDGE CHARLES E. FLEMING
Plaintiff, )
) MEMORANDUM OPINION AND
v. ) ORDER
)
)
IMPERIAL ALUMINUM – MINERVA LLC, )
)
Defendant. )
Currently pending before the Court are two motions: (i) Defendant Imperial Aluminum –
Minerva LLC’s Motion to Dismiss Plaintiff’s Complaint (ECF No. 5); and (ii) Plaintiff Steven
Flack’s Motion for Adoption of Initial Protocols for Employment Cases (“Motion to Adopt”)
(ECF No. 8). For the reasons that follow, the court DENIES the pending motions.
I. Procedural History
On April 19, 2023, Plaintiff filed a complaint alleging that Defendant had terminated
Plaintiff’s employment because he had accumulated too many absences from work and this
termination constituted: (i) interference with Plaintiff’s rights under the Family and Medical Leave
Act (“FMLA”), in violation of 29 U.S.C. §2615(a)(1); and (ii) retaliation against Plaintiff for
having exercised his FMLA rights, in violation of 29 U.S.C. §2615(a)(2). (ECF No. 1, PageID
#2–4).
On May 12, 2023, Defendant filed a motion to dismiss the complaint pursuant to Federal
Rules of Civil Procedure 12(b)(6) and 10(b). (ECF No. 5). Defendant argues that the complaint
does not comply with Rule 10(b) and constitutes “shotgun pleading” because it asserts two distinct
FMLA claims (interference/enjoyment and retaliation) under a single count. (Id. at PageID #3–
4). Defendant requests that the Court dismiss the complaint so that Plaintiff can submit an
amended complaint that complies with Rule 10(b). (Id. at PageID #4).
On May 25, 2023, Plaintiff submitted three filings. First, he filed an opposition to the
motion to dismiss, arguing that the FMLA interference and retaliation claims are sufficiently stated
to allow Defendant to identify the separate claims and file a dispositive motion. (ECF No. 6 at
PageID #2–4). Second, he filed an amended complaint. (ECF No. 7). Finally, he filed the Motion
to Adopt, requesting that the Court “adopt Federal Judicial Center’s Initial Discovery Protocols
For Employment Cases Alleging Adverse Action in this case in lieu of the Rule 26 Disclosures.”
(ECF Doc. 8, PageID #1).
II. Analysis
A. Motion to Dismiss
Plaintiff’s amended complaint was timely filed as a matter of course. See Fed. R. Civ. P.
15(a)(1)(B) (“A party may amend its pleading once as a matter of course within . . . 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.”). “It is well-settled that motions to dismiss are rendered moot upon the filing
of an amended complaint.” Doe v. Oberlin Coll., No. 1:17cv1335, 2018 U.S. Dist. LEXIS 237046,
at *6 (N.D. Ohio Feb. 23, 2018) (citing cases); see also Crawford v. Tilley, 15 F.4th 752, 759 (6th
Cir. 2021) (“The general rule is that filing an amended complaint moots pending motions to
dismiss.”); Helms v. Aramark Corr. Servs., No. 3:22-cv-1557, 2022 U.S. Dist. LEXIS 231412, at
*2 (N.D. Ohio Dec. 21, 2022) (citing Doe, 2018 U.S. Dist. LEXIS 237046, at *6). Because
Plaintiff has filed an amended complaint, the Court DENIES Defendant’s motion to dismiss (ECF
No. 5) as moot.
Alternatively, the Court would deny the motion to dismiss on the merits. The Sixth Circuit
“has not explicitly addressed whether failure to separately state counts provides grounds for a court
to . . . dismiss the claim.” Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 n.2 (6th Cir. 2013).
But it has noted that “the separation of claims into separate counts is mandatory only if more than
one claim has been joined in a complaint and separation will facilitate clear presentation.” See id.
(citing Northwest Airlines, Inc. v. Gleen L. Martin Co., 9 F.R.D. 551, 552 (N.D. Ohio 1949)). In
practice, “courts are reluctant to dismiss colorable claims which have not had the benefit of factual
discovery.” Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 228 (6th Cir. 2005) (citing Conley v.
Gibson, 355 U.S. 41, 48, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Here, the pleadings are sufficiently
clear for Defendant to have independently recognized that Plaintiff is asserting two, distinct FMLA
claims without their separation into independent counts. Thus, in light of Sixth Circuit precedent,
the Court would deny the motion to dismiss on the merits if it had not been rendered moot.
B. Motion to Adopt
The Court considers the Plaintiff’s Motion to Adopt as premature, given the procedural
posture of this case – before the filing of an answer, initial disclosures, and a case management
conference. Thus, the Court DENIES the Motion to Adopt (ECF No. 8) without prejudice to its
filing at a later, more appropriate, date.
IV. Conclusion
The Court DENIES Defendant Imperial Aluminum – Minerva LLC’s Motion to Dismiss
Plaintiff’s Complaint (ECF No. 5) as moot. Plaintiff Steven Flack’s Motion to Adopt (ECF No. 8)
is DENIED WITHOUT PREJUDICE. The Court ORDERS Defendant Imperial Aluminum –
Minerva LLC to respond to Plaintiff’s amended complaint (ECF No. 7) within fourteen days of
the issuance of this decision.
IT IS SO ORDERED. ‘abi
Dated: March 28, 2024
HONORABLE CHARLES E. FLEMING
UNITED STATES DISTRICT JUDGE