Ellen Burke v. AP Atherton Limited Partnership, Tomlinson & Associates Inc., Teri Giacomino, Glen Kyle, Tim Beery and Tom Mannschreck

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

ELLEN BURKE, CV-25-57-JTJ

Plaintiff, ORDER vs.

AP ATHERTON LIMITED PARTNERSHIP, TOMLINSON & ASSOCIATES INC., TERI GIACOMINO, GLEN KYLE, TIM BEERY AND TOM MANNSCHRECK,

Defendants.

On January 15, 2026, the Court conducted a hearing regarding Defendants Tomlinson & Associates, Inc., Tim Beery and Teri Giacomino’s (Defendants) Motion to Dismiss Plaintiff Ellen Burke’s (Burke) Complaint. (Doc. 11). At the conclusion of the hearing, the Court dismissed Burke’s claims made pursuant to 42 U.S.C. § 1983. The Court further dismissed all the named Defendants except for AP Atherton Limited Partnership and Tomlinson & Associates Inc. The Court provided Burke until Friday, January 23, 2026 to file an Amended Complaint regarding any claims she had under the Fair Housing Act against Atherton Limited Partnership and Tomlinson & Associates. Burke filed an Amended Complaint. (Doc. 23). Plaintiff’s Amended Complaint renders Defendants’ Motion to Dismiss moot. An amended complaint supersedes the original complaint thereby becoming the operative pleading. CDK Global LLC v. Brnovich, 16 F.4th 1266, 1274 (9th Cir. 2021). “When Plaintiff files an amended complaint as of right ... the amended complaint becomes the operative pleading ... any pending motion to dismiss becomes moot.” Morgan v. LexisNexis Risk Solutions, Inc., 2025 WL 2986630 at *1 (E.D. Cal. Oct. 23, 2025). Accordingly, IT IS ORDERED that Defendants Motion to Dismiss (Doc. 11) is DENIED

as moot. DATED this 26th day of January 2026.

United States Magistrate Judge