Davidson v. Capital One Bank (USA), N.A., No. 1:2013cv02307 - Document 40 (N.D. Ga. 2014)

Court Description: OPINION AND ORDER that the Non-Final Report and Recommendation 22 is ADOPTED. Defendant's Motion to Dismiss 11 is DENIED AS MOOT. IT IS FURTHER ORDERED that Plaintiff's Motion to Certify Class 3 is DENIED WITHOUT PREJUDICE to re-filing in accordance with Local Rule 23.1. Signed by Judge William S. Duffey, Jr on 2/27/2014. (anc)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KEITH DAVIDSON, on behalf of plaintiff and a class, Plaintiff, v. 1:13-cv-2307-WSD-ECS CAPITAL ONE BANK (USA), N.A., Defendant. ORDER This matter is before the Court on Magistrate Judge E. Clayton Scofield s Non-Final Report and Recommendation [22] ( R&R ) recommending that Defendant s Motion to Dismiss [11] be denied as moot. Also before the Court is Plaintiff s Motion to Certify Class [3]. On July 11, 2013, Plaintiff Keith Davidson ( Plaintiff ), on behalf of himself and a class of similarly situated individuals, filed his Complaint [1] alleging that Defendant Capital One Bank (USA), N.A. ( Defendant ) violated certain provisions of the Fair Debt Collection Practices Act ( FDCPA ). On July 12, 2013, Plaintiff filed his Motion to Certify Class seeking the certification of this action as a class action under Rule 23 of the Federal Rules of Civil Procedure. On August 29, 2013, Defendant filed its Motion to Dismiss on the ground that Plaintiff s Complaint fails to state a claim upon which relief can be granted. On September 12, Plaintiff filed, as a matter of course under Rule 15(a), his Amended Complaint [13] asserting FDCPA claims against Defendant. On October 15, 2013, Magistrate Judge Scofield issued his R&R recommending that the Motion to Dismiss be denied as moot because of the filing of the Amended Complaint. Neither party filed objections, or otherwise responded, to the R&R. The Court does not find error in the R&R s recommendation. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam) (noting that the district court reviews only for plain error a report and recommendation to which no objection is made). Because Plaintiff filed his Amended Complaint, Defendant s Motion to Dismiss the original Complaint is moot. See, e.g., Sheppard v. Bank of Am., NA, No. 1:11-CV-4472-TWT, 2012 WL 3779106, at *4 (N.D. Ga. Aug. 29, 2012); see also Lowery v. Ala. Power Co., 483 F.3d 1184, (11th Cir. 2007) ( [A]n amended complaint supersedes the initial complaint and becomes the operative pleading in the case. ).1 Accordingly, 1 As noted by the Magistrate Judge, Plaintiff s Motion to Certify Class is also moot because of the filing of the Amended Complaint. See Kiobel v. Royal Dutch Petroleum Co., No. 02-cv-7618, 2006 WL 7150834, at *1 (S.D.N.Y. Feb. 10, 2006) (explaining that a motion to certify a class becomes moot after the filing of an amended complaint because the new complaint meaningfully changes the 2 IT IS HEREBY ORDERED that Magistrate Judge E. Clayton Scofield s Non-Final Report and Recommendation [22] is ADOPTED. Defendant s Motion to Dismiss [11] is DENIED AS MOOT. IT IS FURTHER ORDERED that Plaintiff s Motion to Certify Class [3] is DENIED WITHOUT PREJUDICE to re-filing in accordance with Local Rule 23.1 SO ORDERED this 27th day of February, 2014. analysis under Rule 23 of the motion to certify ). Plaintiff s Motion to Certify Class is thus denied without prejudice to re-filing within the time limits provided in Local Rule 23.1. 3

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