The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MITCHELL MUSTAINE,
Plaintiff, Case No. 3:20-cv-504
vs.
MONTGOMERY COUNTY District Judge Michael J. Newman
BOARD OF COUNTY COMMISSIONERS, et al.,
Defendants.
______________________________________________________________________________
ORDER (1) DENYING AS MOOT DEFENDANT MONTGOMERY COUNTY COURT
OF COMMON PLEAS’ MOTION TO DISMISS (DOC. NO. 7); (2) DISMISSING
DEFENDANT MONTGOMERY COUNTY COURT OF COMMON PLEAS FROM THIS
MATTER; AND (3) DENYING AS MOOT DEFENDANT JUDGE RICHARD
SKELTON’S MOTION TO DISMISS (DOC. NO. 11)
______________________________________________________________________________
Plaintiff initiated this civil case by filing a complaint, through counsel, raising employment
discrimination claims against three Defendants: the Montgomery County Board of Commissioner
(the “Board”), the Montgomery County Court of Common Pleas (the “Common Pleas Court”),
and Judge Richard Skelton (collectively, “Defendants”). Doc. No. 1. In response, both the
Common Pleas Court and Judge Skelton filed motions to dismiss under Fed. R. Civ. P. 12(b). Doc.
Nos. 7, 11.
Rather than filing a memorandum in opposition to Defendants’ motions to dismiss, Plaintiff
filed an amended complaint. Doc. No. 12. Amending a complaint in this situation, without leave
of Court, is permitted because Plaintiff filed his amended complaint within 21 days after
Defendants served their motions to dismiss. See Fed. R. Civ. P. 15(a)(1)(B).
The Board and Judge Skelton each filed an answer to the amended complaint. Doc. Nos.
13, 14.
Plaintiff’s amended complaint omits claims against Common Pleas Court. Doc. No. 12.
Consequently, the Common Pleas Court is no longer a party to the case, and its motion to dismiss
(Doc. No. 7) is moot.
Additionally, the motions to dismiss filed by the Common Pleas Court and Judge Skelton
focus on Plaintiff’s original complaint. Plaintiff’s amended complaint “supersedes” his prior
complaint and “nulli[fies]” the motions to dismiss. See B & H Med., L.L.C. v. ABP Admin., Inc.,
526 F.3d 257, 267 n.8 (6th Cir. 2008) (quoting Drake v. City of Detroit, No. 06-1817, 2008 WL
482283, at *2 (6th Cir. Feb. 21, 2008)) (stating that a prior “complaint is a nullity, because an
amended complaint supersedes all prior complaints”). The Common Pleas Court and Judge
Skelton’s motions to dismiss are therefore moot.
For the foregoing reasons, the Common Pleas Court and Judge Skelton’s motions to
dismiss are DENIED AS MOOT. Doc. Nos. 7, 11. Judge Skelton may restate his arguments in
a motion for judgment on the pleadings. Fed. R. Civ. P. 12(c). The Court anticipates that Plaintiff,
Judge Skelton, and the Board will convene and submit a Rule 26(f) report in accordance with the
Court’s March 25, 2021 Order setting a preliminary pretrial conference. Doc. No. 15.
IT IS SO ORDERED.
Date: April 21, 2021 s/Michael J. Newman
Hon. Michael J. Newman
United States District Judge