Filed: Dec. 16, 2019
Latest Update: Dec. 16, 2019
Summary: ORDER DENYING DEFENDANT GARRETT'S MOTION TO STRIKE AMENDED COMPLAINT (ECF NO. 25) and REPORT AND RECOMMENDATION TO DENY AS MOOT WITHOUT PREJUDICE DEFENDANT GARRETT'S MOTION TO DISMISS (ECF NO. 19) AND CORRECTED MOTION TO DISMISS (ECF NO. 20) DAVID R. GRAND , Magistrate Judge . I. REPORT On September 3, 2019, Plaintiffs, "The Indigenous American People Inhabiting the County of Wayne, Michigan" ("IAP"), filed a "Petition" in this case, along with a motion for temporary restraining order
Summary: ORDER DENYING DEFENDANT GARRETT'S MOTION TO STRIKE AMENDED COMPLAINT (ECF NO. 25) and REPORT AND RECOMMENDATION TO DENY AS MOOT WITHOUT PREJUDICE DEFENDANT GARRETT'S MOTION TO DISMISS (ECF NO. 19) AND CORRECTED MOTION TO DISMISS (ECF NO. 20) DAVID R. GRAND , Magistrate Judge . I. REPORT On September 3, 2019, Plaintiffs, "The Indigenous American People Inhabiting the County of Wayne, Michigan" ("IAP"), filed a "Petition" in this case, along with a motion for temporary restraining order ..
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ORDER DENYING DEFENDANT GARRETT'S MOTION TO STRIKE AMENDED COMPLAINT (ECF NO. 25)
and
REPORT AND RECOMMENDATION TO DENY AS MOOT WITHOUT PREJUDICE DEFENDANT GARRETT'S MOTION TO DISMISS (ECF NO. 19) AND CORRECTED MOTION TO DISMISS (ECF NO. 20)
DAVID R. GRAND, Magistrate Judge.
I. REPORT
On September 3, 2019, Plaintiffs, "The Indigenous American People Inhabiting the County of Wayne, Michigan" ("IAP"), filed a "Petition" in this case, along with a motion for temporary restraining order ("TRO"), seeking to halt a real property auction scheduled for September 4, 2019.1 (ECF Nos. 1, 2). In a recent ruling in this case, the Honorable Laurie J. Michelson concisely summarized IAP's allegations as follows:
In its pro se complaint, IAP claims that the succession of the Wayne County Treasurer (from Raymond Wojtowicz to Richard Hathaway to Eric Sabree) was unlawful. IAP's complaint also suggests that some (or all) of the homes of its members were unlawfully deemed abandoned. As for its motion [for TRO], IAP describes how the Wayne County Treasurer is not lawfully in office, suggests that the Wayne County Treasurer (or related entity) committed mail fraud, claims that the "Land Mandate" ... entitles its members to their properties, suggests that property-tax-assessment procedures were not followed, and suggests that proper procedures were not followed in deeming its members' properties abandoned. Many of these claims are difficult to follow and recite verbatim the text of case law, regulations, and statutes. As far as this Court can tell, members of IAP did not pay their taxes — or, at least, the Wayne County Treasurer determined that they had not — and so their homes were foreclosed upon and slated for the September 4 auction.
(ECF No. 13, PageID.168-69) (citations omitted).
On October 25, 2019, Defendant Cathy M. Garrett ("Garrett"), the Wayne County Clerk, filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (ECF No. 19). On October 28, 2019, Garrett filed a Corrected Motion to Dismiss pursuant to the same Rules. (ECF No. 20).
On November 7, 2019, however, IAP filed an Amended Complaint as a matter of right. 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 motion under Rule 12(b), (e), or (f) ...."); see also Broyles v. Correctional Med. Servs., No. 08-1638, 2009 WL 3154241, at *3 (E.D. Mich. Jan 23, 2009) (Rule 15(a) gives a plaintiff an "absolute right" to amend a complaint within 21 days of the filing of a responsive pleading).2
The law is clear that an amended complaint, when filed, supplants the original complaint and becomes the only live complaint in the case.3 See Parks v. Federal Express Corp., 1 F. App'x 273, 277 (6th Cir. 2001). See also Long v. County of Saginaw, No. 12-15586, 2014 WL 1845811, at *3 fn. 1 (E.D. Mich. May 8, 2014) (quoting 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed. 2010)) ("Because amended pleadings supersede original pleadings, `the original pleading no longer performs any function in the case ...'"). Therefore, any motion directed at the original complaint is moot in the face of the filing of the amended complaint. See KBT Group, LLC v. City of Eastpointe, No. 18-10409, 2019 WL 1556194, at *3 (E.D. Mich. Apr. 10, 2019) (explaining that since an amended complaint supersedes the original complaint, a motion to dismiss the original complaint is moot). Thus, the Court should deny without prejudice Garrett's motion (and corrected motion) to dismiss.
II. RECOMMENDATION
For the reasons set forth above, IT IS RECOMMENDED that Garrett's Motion to Dismiss (ECF No. 19) and Corrected Motion to Dismiss (ECF No. 20) be DENIED AS MOOT WITHOUT PREJUDICE.
REVIEW
The parties to this action may object to and seek review of this Order and Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Note these additional requirements at the direction of Judge Michelson:
Any objections must be labeled as "Objection No. 1," "Objection No. 2," etc. Any objection must recite precisely the provision of this Order and Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
