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Bertram Emekekwue v. Chinwe Offor

October 24, 2012

BERTRAM EMEKEKWUE,
PLAINTIFF
v.
CHINWE OFFOR,
DEFENDANT



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Before the court is Defendant's motion for summary judgment wherein Defendant argues that this court lacks personal jurisdiction over Defendant. (Doc. 22.) The parties have briefed the issues, and the matter is ripe for disposition. For the reasons stated below, the motion will be denied.

I. Background

Plaintiff, Bertram Emekekwue, brought this action in response to comments made by Defendant, Chinwe Offor, in an e-mail dated July 19, 2011. (See Doc. 1, Compl.; Doc. 8, Amended Compl.) Plaintiff's initial complaint brought claims of libel, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), and punitive damages. (Doc. 1.) On December 7, 2011, Defendant filed her initial motion to dismiss along with a brief in support. (Docs. 5 & 6.) In that motion, Defendant argued for dismissal of Plaintiff's complaint based on lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), as well as for failure to state a claim under Rule 12(b)(6). (Doc. 6.)

Prior to the court's disposition of Defendant's initial motion to dismiss, Plaintiff filed an amended complaint on December 16, 2011. (Doc. 8.) In response, on December 31, 2011, Defendant filed an amended motion to dismiss. (Doc. 12.) Defendant filed a brief in support of the amended motion to dismiss on January 3, 2012. (Doc. 13.) Defendant's amended motion to dismiss, and the brief in support thereof, contained arguments for dismissal based solely on Plaintiff's failure to state a claim pursuant to Rule 12(b)(6). Notably, Defendant did not re-raise, incorporate by reference, or otherwise mention the personal jurisdiction argument in either the amended motion to dismiss or brief in support.

On May 15, 2012, this court ruled on Defendant's motion to dismiss. The court addressed Defendant's Rule 12(b)(6) arguments and issued a memorandum and order granting the amended motion to dismiss as to Plaintiff's IIED, NIED, and punitive damages claims and denying it as to Plaintiff's defamation claim. (Doc. 17.) Noting that Defendant did not re-raise the personal jurisdiction argument, the court only addressed the arguments presented in the amended motion to dismiss. (Doc. 17 at 4, n. 4.)

Following the issuance of the court's memorandum and order granting in part and denying in part Defendant's motion to dismiss, Defendant filed an answer to the amended complaint on June 1, 2012. (Doc. 18.) In the section entitled "Affirmative Defenses," Defendant asserts that "[t]he court lacks personal jurisdiction over the Defendant." (Doc. 18 at 2.) On July 24, 2012, Defendant filed the instant motion for summary judgment, raising the sole issue of personal jurisdiction. (Doc. 22.) Defendant filed a memorandum of law in support of summary judgment on August 7, 2012. (Doc. 24.) Plaintiff filed his brief in opposition on August 24, 2012, (Doc. 25) and Defendant filed a reply brief on August 26, 2012 (Doc. 26). The parties have submitted their briefs and the motion for summary judgment is now ripe for disposition.

II. Discussion

Following a thorough review of the relevant authority, the court finds that Defendant, pursuant to the waiver provisions of Federal Rule of Civil Procedure 12(g) and 12(h), has waived her right to raise personal jurisdiction arguments at this point in the case. Accordingly, for the following reasons, the motion for summary judgment will be denied.

a. Amended Pleadings

Plaintiff filed an amended complaint within 21 days after service of Defendant's initial motion to dismiss, as permitted under Federal Rule of Civil Procedure 15(a)(1). When a plaintiff amends their complaint, the amended complaint supersedes the original complaint and renders the original complaint a nullity. See Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002); see also 6 Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §1476 (3d ed. 1998 & Supp. 2012). The amended complaint thus becomes the operative document which serves to shape the litigation.

The amendment of a complaint also may give rise to circumstances which serve to render a motion to dismiss, made in response to the superseded original complaint, moot.*fn1 See Calloway v. Green Tree Servicing, LLC, 599 F. Supp. 2d 543, 546 (D. Del. 2009) ("Defendant's motion to dismiss is responsive to plaintiffs' original complaint. As the amended complaint has superseded the original, defendant's motion to dismiss has become moot."); see also Bancoult v. McNamara, 214 F.R.D. 5, 13 (D.D.C. 2003) ("Because the original complaint now is superseded by the amended complaint, the court denies without prejudice all pending motions pertaining to the original complaint."). Defendants "are not required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending. If some of the defects raised in the original motion remain in the new pleading, the court may simply consider the motion as being addressed to the amended pleading." Jordan v. City of Phila., 66 F. Supp. 2d 638, 641, n.1 (E.D. Pa. 1999) (citing 6 Charles A. Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 1476 (2d. ed. 1990)).

If a defendant decides not to rest on its initial motion, the defendant may, as here, file an amended motion to dismiss. In the amended motion, defendants have the freedom to re-raise or incorporate by reference any and all issues asserted in their initial motion to dismiss. See Pippett v. Waterford Development, LLC, 166 F. Supp. 2d 233, 236 (E.D. Pa. 2001).*fn2 However, upon submission of an amended motion to dismiss, the original motion to dismiss becomes moot, and the court is therefore constrained to address the arguments contained in the amended motion. See Holiday Village East Home Owners Ass'n, Inc. v. QBE Ins. Corp., 830 F. Supp. 2d 24, 28 (D. N.J. 2011). It is fair ...


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