Hermann v. Kirkwood R-7 School District ( 2020 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION CAROL HOTZE HERMANN, ) Plaintiff, V. No. 4:20-CV-1216 RLW KIRK WOOD R-7 SCHOOL DISTRICT, et al., ) Defendants. MEMORANDUM AND ORDER This matter is before the Court on Plaintiff's Motion for Leave to File First Amended Petition, which the Court construes as a Motion for Leave to File an Amended Complaint.!_ Defendant Kirkwood R-7 School District (“KSD”) opposes the motion, and David Shapleigh failed to file a response. Also before the Court is KSD’s Motion to Dismiss Counts JIJ and IV pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Incorporating the arguments it made in its Memorandum in Support of its Motion to Dismiss, KSD opposes Plaintiff's Motion for Leave to File an Amended Complaint on the grounds that amendment would be futile, in that the new pleading fails to state a claim under the pleading standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In United States district courts, a civil action is commenced by filing a complaint, not a petition. Fed. R. Civ. P. 3. Plaintiff commenced this action on September 9, 2020. KSD filed its Motion to Dismiss on October 2, 2020. On October 8, 2020, Plaintiff filed a response in opposition to KSD’s Motion to Dismiss. Later, on October 15, 2020, Plaintiff file her motion for leave to amend, attached to which is a proposed “First Amended Petition for Damages.” Under Fed. R. Civ. P. 15(a)(1)(B), a plaintiff may amend her pleading once as a matter of course within 21 days of the filing of the first Rule 12(b) motion. See Rule 15(a)(1)(B). Plaintiff filed her motion for leave to amend within 21 days of KSD’s motion to dismiss. Therefore, Plaintiff's motion for leave to amend will be denied as moot, as she was entitled to file her amended pleading without leave of Court. The Court, however, will not direct the Clerk of Court to docket Plaintiff's proposed amended pleading, which is attached to Plaintiff's motion, because it is improperly entitled a petition. The Court will, however, allow Plaintiff to file a First Amended Complaint within three day of this Memorandum and Order. An amended complaint supercedes the original complaint and renders it without legal effect. See In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000). Asa result, pending motions pertaining to the original complaint should be denied as moot, see Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002), without prejudice to the filing of motions concerning the amended complaint. Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File First Amended Petition, which the Court construes as a Motion for Leave to File an Amended Complaint is DENIED as moot. [ECF No. 11] IT IS FURTHER ORDERED that consistent with the terms of this Memorandum and Order, Plaintiff shall have three (3) days from today’s date to file her First Amended Complaint. IT IS FURTHER ORDERED that Defendant Kirkwood R-7 School District’s Motion to Dismiss Counts III and IV is DENIED as moot without prejudice. [ECF No. 7] RONNIE L. WHITE UNITED STATES DISTRICT JUDGE Dated this j[tt day of December, 2020.