UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
June 12, 2012
HICHAM AZKOUR, PLAINTIFF,
JEAN-YVES HAOUZI, FRANCK MAUCORT, JESSICA COMPERIATI, LITTLE REST TWELVE, INC., SHELDON SKIP TAYLOR, ESQ., LAW OFFICES SHELDON SKIP TAYLOR, DEFENDANTS.
REPORT & RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE TO THE HONORABLE RICHARD J. SULLIVAN, UNITED STATES DISTRICT JUDGE
Plaintiff, Hicham Azkour ("Azkour"), proceeding pro se and in forma pauperis, brings this action under, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq., alleging that defendants Jean-Yves Haouzi ("Haouzi"), Franck Maucort ("Maucort"), Jessica Comperiati ("Comperiati"), and Little Rest Twelve, Inc. ("LRT"), discriminated and retaliated against him, "on account of his race (Arab)," by interfering with his rights to: (1) enforce an employment contract; (2) sue; (3) be a party to a proceeding; (4) give evidence in a proceeding; and (5) "enjoy the full and equal benefit of all laws and proceedings for the security of his person and property as is enjoyed by white citizens." Azkour also alleges that the above-noted defendants, and defendants Sheldon Skip Taylor, and the Law Offices Sheldon Skip Taylor, conspired to "deter him by intimidation and threat from freely and fully, and truthfully testifying to matters pending in the United States District Court for the Southern District of New York." According to Azkour, the "defendants conspired to injure Plaintiff in his person and property on account of his having attended and testified in the aforementioned pending matters." In addition,
Azkour has asserted causes of action against the defendants, under New York law, for defamation and intentional infliction of emotional distress.
Before the Court is the defendants' motion to dismiss Azkour's second amended complaint.
On August 8, 2011, Azkour filed his original complaint; that complaint was never served on any of the defendants. On October 14, 2011, Azkour filed his first amended complaint and served it on Haouzi, Maucort, Comperiati, and LRT on December 16, 2011. However, on October 20, 2011, Azkour filed his second amended complaint, but never served it on any of the defendants. On January 24, 2012, the defendants filed a motion to dismiss Azkour's second amended complaint, although they had never been served with that pleading. The defendants' motion to dismiss Azkour's second amended complaint is addressed below. On February 2, 2012, Azkour filed a third amended complaint.
DISCUSSION Federal Rule of Civil Procedure 15, in pertinent part, provides that
[a] party may amend its pleadings once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under rule 12(b), (e), or (f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1). "It is well established that an amended complaint ordinarily supercedes the original, and renders it of no legal effect." Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (citation omitted). "Once an amended pleading is interposed, the original pleading no longer performs any function in the case." 6 C. W RIGHT A. M ILLER & M. K ANE, F EDERAL P RACTICE AND P ROCEDURE § 1476, at 636-37 (2010).
On January 24, 2012, the defendants filed a motion to dismiss Azkour's second amended complaint, pursuant to Fed R. Civ. P. 12(b)(6). *fn1 On February 2, 2012, seven days after the defendants' filed their motion to dismiss, Azkour filed his third amended complaint. At the time that Azkour filed his third amended complaint, the 21-day period during which Fed. R. Civ. P. 15(a)(1)(B) permits a plaintiff to amend his or her pleadings, "as a matter of course," when a Rule 12(b) motion has been made, had not elapsed. Inasmuch as an amended complaint supercedes a previously filed complaint and renders it of no legal effect, see Shields, 25 F.3d at 1128, when Azkour filed his third amended complaint, his second amended complaint was supplanted and divested of any legal effect. As a consequence, the defendants' motion to dismiss Azkour's second amended complaint was made moot.
For the reasons set forth above, I recommend that the defendants' motion to dismiss Azkour's second amended complaint, Docket Entry No. 22, be dismissed.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk