United States District Court, D. Montana,

Billings Division.

CROWN PARTS AND MACHINE, INC., a Montana corporation, Plaintiff,

v.

CON-WAY FREIGHTS, INC., a Delaware corporation, Defendants.

April 14, 2008.

ORDER ADOPTING; FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

RICHARD F. CEBULL, District Judge.

On February 28, 2008, United States Magistrate Judge Carolyn S. Ostby entered her Findings and Recommendation. Magistrate Judge Ostby recommends Con-Way’s Motion to Dismiss be denied as moot.

Upon service of a magistrate judge’s findings and recommendation, a party has 10 days to file written objections. 28 U.S.C. § 636(b)(1). In this matter, no party filed objections to the February 28, 2008 Findings and Recommendation. Failure to object to a magistrate judge’s findings and recommendation waives all objections to the findings of fact. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.1999). However, failure to object does not relieve this Court of its burden to review de novo the magistrate judge’s conclusions of law. Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989).

After an extensive review of the record and applicable law, this Court finds Magistrate Judge Ostby’s Findings and Recommendation are well grounded in law and fact and adopts them in their entirety.

Accordingly, IT IS HEREBY ORDERED that Con-Way’s Motion to Dismiss (Doc. 2) is DENIED as moot. The Clerk of Court shall notify the parties of the making of this Order.

FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CAROLYN S. OSTBY, United States Magistrate Judge.

Plaintiff Crown Parts and Machine, Inc. (“Crown”) initiated this action in state court against Defendant Con-way Freight Inc. (“Con-way”).Cmplt. (Courts Doc. No. 5). Crown alleged that it entered a contract with Con-way for Con-way to transport certain “mining parts” from Los Angeles, California, to Billings, Montana, for Crown. Id. at ¶ 8. Crown alleged that Con-way failed to transport a part identified as a “VE7384 Torque Tube” that has a fair market value of $33,192.72. Id. at ¶¶ 11-12.Crown, which alleged claims for negligence (Court I) and conversion (Count II), sought compensatory damages for the torque tube, prejudgment interest, and consequential damages.

On January 30, 2008, Con-way removed the action to this Court. Court’s Doc. No. 1 (Notice of Removal). Con-way also filed a Motion to Dismiss (Court’s Doc. No. 2) and supporting brief (Court’s Doc. No. 3). Con-way argues that Crown’s claims against it arise from the interstate shipment of goods and, therefore, are preempted by the Carmack Amendment, 49 U.S.C. § 14706. Mtn. to Dismiss at 1-2.

In response, Crown filed a brief (Court’s Doc. No. 6) and an amended complaint (Courts Doc. No. 7). In the Amended Complaint, Crown asserts a claim under the Carmack Amendment and abandons its claims asserted in the original complaint. Thus, Crown argues that Con-way’s motion to dismiss should be denied. The Court agrees.

Rule 15(a)(1)(A), Fed.R.Civ.P., allows a party to amend its complaint, inter alia,“once as a matter of course … before being served with a responsive pleading[.]” A motion to dismiss a complaint is not a responsive pleading within Rule 15(a)’s meaning. Rhoades v. Avon Products, Inc., 504 F.3d 1151, 1158 n. 5 (9th Cir.2007) (citing Miles v. Department of Army, 881 F.2d 777, 781 (9th Cir.1989)).

Here, Crown filed its Amended Complaint after Con-way filed a motion to dismiss, but before Con-way filed a responsive pleading. Thus, the Amended Complaint complies with Rule 15(a). Because Con-way’s motion to dismiss relates to the original Complaint and the original Complaint Is no longer operative, the motion to dismiss it is moot. Accordingly,

IT IS RECOMMENDED that Con-wa/s Motion to Dismiss (Court’s Doc. No. 2) be DENIED as moot.

NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve a copy of the Order and Findings and Recommendation of the United States Magistrate Judge upon the parties. The parties are advised that pursuant to 28 U.S.C. § 636, any objections to the findings and recommendation portion must be filed with the Clerk of Court and copies served on opposing counsel within ten (10) days after receipt hereof, or objection is waived.