Filed: Apr. 17, 2012
Latest Update: Apr. 17, 2012
Summary: REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE BARRY A. BRYANT, Magistrate Judge. Before this Court is Separate Defendant, Thomas Boozer's, Motion to Dismiss. ECF No. 23. This Motion was filed on September 26, 2011. See id. No response to this Motion has been filed. Pursuant to the provisions of 28 U.S.C. 636(b)(1) and (3) (2009), the Honorable Harry F. Barnes referred this Motion to this Court for the purpose of making a report and recommendation. In accordance with that
Summary: REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE BARRY A. BRYANT, Magistrate Judge. Before this Court is Separate Defendant, Thomas Boozer's, Motion to Dismiss. ECF No. 23. This Motion was filed on September 26, 2011. See id. No response to this Motion has been filed. Pursuant to the provisions of 28 U.S.C. 636(b)(1) and (3) (2009), the Honorable Harry F. Barnes referred this Motion to this Court for the purpose of making a report and recommendation. In accordance with that ..
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REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BARRY A. BRYANT, Magistrate Judge.
Before this Court is Separate Defendant, Thomas Boozer's, Motion to Dismiss. ECF No. 23. This Motion was filed on September 26, 2011. See id. No response to this Motion has been filed. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Harry F. Barnes referred this Motion to this Court for the purpose of making a report and recommendation. In accordance with that referral, this Court enters the following report and recommendation.
Separate Defendant Thomas Boozer filed this Motion to Dismiss alleging Plaintiffs' complaint should be dismissed because it failed to state a cause of action upon which relief could be granted pursuant to FED. R. CIV. P. 12(b)(6). ECF No. 23. However, since the time this Motion to Dismiss was filed, Plaintiffs' filed a Second Amended and Substituted Complaint. ECF No. 30. Separate Defendant Thomas Boozer is not named as a Defendant in Plaintiffs' Second Amended and Substituted Complaint. Thus, this Court finds Separate Defendants' Motion to Dismiss (ECF No. 23) should be granted.
The Amended and Substituted Complaint supercedes Plaintiffs' original Complaint. See Brown Sheet Iron & Steel Co. v. Maple Leaf Oil & Refining Co., 68 F.2d 787, 788 (8th Cir. 1934). See also Brasel v. Weyerhaeuser Co., 2008 WL 693805, at *2 (W.D. Ark. March 12, 2008) (J. Barnes) (following Brown Sheet Iron and holding that an amended complaint supercedes an original complaint). Thus, Separate Defendant Thomas Boozer Motion to Dismiss (ECF No. 23) should be granted as he is no longer a named Defendant is this lawsuit based on the filing of Plaintiffs' Second Amended and Substituted Complaint.
Accordingly, based upon the foregoing, this Court recommends Separate Defendant, Thomas Boozer's Motion to Dismiss (ECF No. 23) be GRANTED.1
The parties have fourteen (14) days from receipt of this Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
