Dupere v. Ethicon, Inc.
- Denise Cote
- 1:21-cv-02605
- U.S. District Court · Southern District of New York
- 1
In Dupere v. Ethicon, Judge Broderick ordered defendants to say whether a pending dismissal motion should be treated as moot after amendment.
The defendants, who were ordered to file a letter explaining how they wanted the court to handle their pending motion to dismiss.
What happened
In Dupere v. Ethicon, Inc., Betty Dupere filed an amended complaint while the defendants’ motion to dismiss was still pending. The opinion states that this amendment was filed under Federal Rule of Civil Procedure 15(a)(1)(B).
The court directed the defendants to file a letter by June 28, 2021. They must state whether the pending motion to dismiss should be treated as moot, allowing them to file a new motion under Rule 15(a)(3), or whether the court should evaluate the existing motion using the amended complaint.
Judge Vernon S. Broderick issued this order. The order did not itself grant or deny the motion to dismiss.
The detailed version
- Dupere v. Ethicon, Inc. · No. 1:21-cv-02605
- Denise Cote
- June 22, 2021
Background
Betty Dupere filed an amended complaint on June 18, 2021, under Federal Rule of Civil Procedure 15(a)(1)(B). The defendants had already filed a motion to dismiss, and that motion was still pending.
Court’s Direction
The court explained that when a plaintiff properly amends a complaint while a motion to dismiss is pending, the court may either treat the pending motion as moot or evaluate it based on the allegations in the amended complaint.
The court ordered the defendants to file a letter by June 28, 2021, stating which of two options they preferred: that the current motion to dismiss be treated as moot, without prejudice to filing a new motion under Rule 15(a)(3), or that the court evaluate the current motion in light of the amended complaint.
Disposition
The order directed the defendants to submit the letter. It did not grant or deny the pending motion to dismiss and did not decide the merits of the claims.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.