1:05-cv-01219 | D. Colo. | Jan 8, 2007

Case 1:05-cv-01219-EWN-MEH Document 93 Filed 01/08/07 USDC Colorado Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 05–cv–01219–EWN–MEH TRAVIS NITCHMAN,

Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, INC.,

Defendant. ORDER AND MEMORANDUM OF DECISION This matter is before the court on “Defendant Union Pacific Railroad Company’s Motion for Partial Summary Judgment,” filed on July 14, 2006. Jurisdiction is premised upon 28 U.S.C. § 1332 (2006).

On July 14, 2006, Defendant filed its motion for partial summary judgment. (Def. Union Pacific R.R. Co.’s Br. in Supp. of its Mot. for Partial Summ. J. to Pl.’s Second Am. Compl. [filed July 14, 2006].) On August 26, 2006, I granted Plaintiff leave to file a third amended complaint. (Order [filed Aug. 26, 2006].) Plaintiff subsequently filed his third amended complaint. (Third Am. Compl. [filed Oct. 6, 2006].)

Defendant’s motion for partial summary judgment concerning Plaintiff’s second amended complaint is moot. A pleading that has been amended under Federal Rule of Civil Procedure 15(a) supercedes the pleading it modifies. Gilles v. United States , 906 F.2d 1386" date_filed="1990-06-22" court="10th Cir." case_name="Milton Gilles v. United States">906 F.2d 1386, 1389 (10th Cir.

Case 1:05-cv-01219-EWN-MEH Document 93 Filed 01/08/07 USDC Colorado Page 2 of 2 1990). In the instant case, there can be no question that Plaintiff’s third amended complaint supersedes his second amended complaint. Accordingly, Defendant’s motion for summary judgment is moot because it is directed at an inoperative pleading.

Moreover, Defendant did not attach a copy of Plaintiff’s second amended complaint — which I surmise was filed in state court — to his notice of removal. ( See Notice of Removal, Ex. A [Copy of State Court Process and Pleadings] [filed June 30, 2005].) Instead, Defendant attached an incomplete copy of Plaintiff’s first amended complaint, which is missing the pages containing two claims for relief at issue on Defendant’s partial summary judgment motion. ( See id. ) This omission would tie my hands were I inclined to compare the first amended complaint with the third amended complaint to ascertain whether the claims at issue on Defendant’s motion were materially affected by subsequent amendments. Thus, even had Plaintiff’s second amended complaint had not been superceded, I would still decline to entertain Defendant’s motion.

Based on the foregoing it is therefore ORDERED that: Defendant’s motion for partial summary judgment (#65) is DENIED as moot. Dated this 8 th day of January, 2007

BY THE COURT:

s/ Edward W. Nottingham

EDWARD W. NOTTINGHAM

United States District Judge

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