Maybe you've been in this situation before. You've moved to dismiss a complaint, have fully briefed your motion, and the defendant dances in on the day of the hearing on your motion and amends his complaint. And the defendant doesn't even bother to make a motion to amend his complaint!
What effect does that have on your well-drafted, sure to be granted, motion to dismiss?
Judge Bledsoe addressed almost exactly that situation today in Krawiec v. Manly, 2015 NCBC 82. The only difference was that the Plaintiff made a Motion to Amend its Complaint.
The Plaintiffs had hired the Defendants to teach at their Forsyth County dance studio, "Happy Dance." The Defendants quit their jobs and began working at another dance studio, in Charlotte. The Plaintiffs' lawsuit followed, alleging everything from breach of contract to misappropriation of trade secrets.
The Defendants all moved to dismiss the Complaint in May 2015. None of them filed an Answer to the Complaint. The Court held a hearing on the Motion to Dismiss in July 2015.
About one month after the hearing, the Plaintiffs filed a Motion to Amend their Complaint. That litigation maneuver leads to several questions:
Did Plaintiffs need to move to amend their Complaint? No, the motion was unnecessary because Rule 15(a) of the North Carolina Rules of Civil Procedure says that "a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. . . ." N.C.R.Civ. P. 15(a)(emphasis added).
Weren't the Motions to Dismiss a "responsive pleading"? No, because "[f]or the purposes of [Rule 15(a)], a Rule 12(b)(6) motion to dismiss is not a responsive pleading and thus does not itself terminate plaintiff's unconditional right to amend a complaint under Rule 15(a)." Op. ¶10 (quoting Hardin v. York Mem'l Park, 221 N.C. App. 317, 320, 730 S.E.2d 768, 773 (2012)).
What happened to the Motion to Dismiss filed before the amendment? It was rendered moot by the Amended Complaint, which was deemed filed by the Court as of the date of the entry of its Order. Op. ¶14(b).
So, the outcome for the Defendants in the Krawiec opinion was that Judge Bledsoe allowed the amendment to the Complaint and denied the Motion to Dismiss as moot.
One way you can avoid the disappointing result for the Defendants in this case is to file your Answer at the same time you file your Motion to Dismiss. But really, who wants to do that?
Special note: This post is the first one in years that i have published the same day as the decision being handed down. I would be doing a happy dance myself about that if I could dance. Unfortunately, I have self-diagnosed myself as being "beat deaf" and I have given up any hope of dancing. But that promptness is largely a function of Judge Bledsoe's opinion only being five pages long anyway.