Cyboron v. Merrick County

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
Brent Cyboron, as Personal Representative of the
Estate of James Cyboron, deceased, and Sandy
Cyboron, spouse, appellants, v. Merrick
County, doing business as Litzenberg
Memorial County Long Term Care,
et al., appellees.
___ N.W.3d ___
Filed April 23, 2026. 	No. S-24-663.
1. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
late court reviews a district court’s denial of a motion for leave to amend
under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Complaints: Motions to Dismiss. When a plaintiff has moved for leave
to amend the complaint before the court rules on a motion to dismiss
the complaint, the court must first consider and rule upon the pending
motion to amend.
4. Motions to Dismiss: Rules of the Supreme Court: Pleadings. A
motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b) is not a
responsive pleading for purposes of Neb. Ct. R. Pldg. § 6-1115(a).
5. Rules of the Supreme Court: Pleadings: Waiver. When a party is
entitled under Neb. Ct. R. Pldg. § 6-1115(a) to amend a pleading once
as a matter of course, the party does not waive that right by filing an
unnecessary motion seeking leave to amend and the court should allow
such amendment as a matter of course.
Appeal from the District Court for Merrick County: Rachel
A. Daugherty, Judge. Reversed and remanded for further
proceedings.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:51 AM CDT

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321 Nebraska Reports
CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
Michael W. Milone and Wendy A. Wussow, of Koukol
Johnson Schmit & Milone, L.L.C., and Shayla M. Reed, of
Reed Law Offices, P.C., L.L.O., for appellants.
David A. Blagg and Mark E. Novotny, of Cassem, Tierney,
Adams, Gotch & Douglas, for appellee Litzenberg Memorial
County Long Term Care.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Stacy, J.
The plaintiffs filed this medical negligence and wrongful
death action against a county-owned skilled nursing facil-
ity pursuant to the Political Subdivisions Tort Claims Act
(PSTCA). 1 The skilled nursing facility moved to dismiss the
complaint for failure to state a claim, arguing that the face of
the complaint did not show compliance with the PSTCA’s pre-
suit notice requirements. 2 In response, the plaintiffs requested
leave to amend their complaint to allege additional facts
and theories regarding the presuit notice requirement. After
a hearing at which evidence was received and considered,
the district court denied leave to amend the complaint and
granted the motion to dismiss. The plaintiffs appeal, assigning
error to both rulings.
The disposition of this appeal is dictated by its procedural
posture at the time the plaintiffs moved to amend their com-
plaint. For reasons we will explain, the plaintiffs were entitled
to amend their complaint once as a matter of course under
Neb. Ct. R. Pldg. § 6-1115(a), and they did not waive that right
by filing a motion seeking leave to amend. Because the trial
court erred in refusing to allow the plaintiffs to amend their
complaint, we reverse the judgment of the district court and
remand the cause for further proceedings.
1 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2022).
2 See § 13-905.

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
BACKGROUND
Presuit Notice Requirements
Under PSTCA
Because the parties’ appellate briefing is focused largely on
whether the plaintiffs have plausibly alleged compliance with
the statutory presuit notice requirements under the PSTCA,
we review the legal principles governing the PSTCA’s presuit
notice requirements, before turning to the relevant factual and
procedural history.
The PSTCA’s presuit notice requirements are set out in
§§ 13-905 and 13-906. Summarized, these statutes require
that before commencing suit under the PSTCA, a claimant
must file a written tort claim with the governing body of
the political subdivision in accordance with the provisions
of § 13-905. 3 This requirement is intended to give the gov-
ernment notice of the tort claim so that it can be investi-
gated and, if appropriate, resolved before suit is commenced. 4
Under § 13-906, a PSTCA suit may not be commenced until
the governing body has made final disposition of the claim,
except that if no final disposition is made within 6 months,
the claim may be withdrawn from consideration and suit may
then be commenced.
We have described the PSTCA’s presuit notice requirements
as procedural conditions precedent to commencing a tort action
against the government. 5 But these notice requirements are
not jurisdictional in nature, and they do not bear directly on
the question of sovereign immunity. 6 Instead, the requirements
are administrative in nature, and a plaintiff’s failure to comply
with the presuit notice requirements may be asserted by the
3 See, Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022);
Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789 (2015).
4 See id.
5 See, Clark, supra note 3; Brothers, supra note 3.
6 See Clark, supra note 3.

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
political subdivision as an affirmative defense in an action
brought under the PSTCA. 7
Original Complaint
In October 2023, this medical negligence and wrongful
death action was commenced in the district court for Merrick
County, Nebraska. There are two named plaintiffs—one is the
personal representative of the estate of James Cyboron, and
the other is James’ surviving spouse.
The complaint alleged that from March 2021 to August
2022, James was a resident of a skilled nursing facility owned
by Merrick County and located in Central City, Nebraska. The
plaintiffs alleged that staff at the nursing facility provided
James with negligent care and treatment that caused pressure
ulcers to develop and become infected, ultimately resulting in
his death on October 19, 2022.
The complaint named 10 defendants—2 individuals and 8
entities. The individual defendants were not served within the
statutory period 8 and now stand dismissed as a matter of law. 9
Regarding the entities named as defendants, the complaint
alleged that the county-owned nursing facility was operated
under a variety of business names, and it named the following
eight entities as defendants, alleging that all were political
subdivisions of the State of Nebraska:
1. 	MERRICK 	COUNTY 	d/b/a 	LITZENBERG
MEMORIAL COUNTY LONG TERM CARE;
2. 	MERRICK 	COUNTY 	d/b/a 	LITZENBERG
MEMORIAL MERRICK COUNTY;
3. 	MERRICK 	COUNTY 	d/b/a 	LITZENBERG
MEMORIAL LONG TERM CARE;
4. 	MERRICK 	COUNTY 	d/b/a 	LITZENBERG
MEMORIAL COUNTY LTC;
7 See id.
8 See Neb. Rev. Stat. § 25-217 (Cum. Supp. 2024).
9 Id.

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
5. MERRICK COUNTY d/b/a MERRICK MEDICAL
CENTER LONG TERM CARE;
6. 	MERRICK 	COUNTY 	d/b/a 	LITZENBERG
MEMORIAL MERRICK COUNTY;
7. 	LITZENBERG 	MEMORIAL 	MERRICK
COUNTY d/b/a LITZENBERG MEMORIAL COUNTY
HOSPITAL[; and]
[8.] 	Litzenberg 	Memorial 	Merrick 	County 	d/b/a
Litzenberg Memorial County Long Term Care . . . .
In addition to these named defendants, the complaint alleged
the county-owned nursing facility also operated “under some
other legal name[s],” and it specifically alleged that James’
medical records referred to the nursing facility as “Litzenberg
Memorial Long Term Care.”
Of the eight entity defendants listed above, the first six
were dismissed pursuant to a preanswer motion, and that rul-
ing has not been appealed, so we do not discuss it further. The
remaining two entity defendants were granted additional time
to respond to the complaint after advising the court that “[d]ue
to the complex nature of the named Defendant in this case, it
will take additional time to determine which Defendants are
viable entities and to have counsel enter appearances for the
various entities.”
Motion to Dismiss
Thereafter, a motion to dismiss pursuant to Neb. Ct. R. Pldg.
§ 6-1112(b)(6) was filed on behalf of a defendant identifying
itself as “Litzenberg Memorial Long Term Care.” This motion
affirmatively stated that the responding defendant had been
“incorrectly named” in the complaint and that
“Litzenberg Memorial Merrick County d/b/a/ Litzenberg
Memorial Long Term Care” and “Litzenberg Memorial
Merrick 	County 	d/b/a 	Litzenberg 	Memorial 	County
Hospital” (the last two Defendants named by Plaintiffs in
the Complaint in this litigation) do not exist to the knowl-
edge of Litzenberg Memorial Long Term Care. . . . As a

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
result, the entity responding in this litigation is Litzenberg
Memorial Long Term Care.
The court and the parties appear to have treated this as a judi-
cial admission correcting a party misnomer, because from that
point forward, everyone referred to this defendant, and to the
skilled nursing facility at issue, as “Litzenberg Memorial Long
Term Care.” We follow suit, but for the sake of simplicity, we
will refer to this defendant as “Litzenberg Memorial.”
As relevant to the issues on appeal, Litzenberg Memorial’s
§ 6-1112(b)(6) motion challenged the sufficiency of the com-
plaint’s allegations regarding presuit notice under the PSTCA.
More specifically, the motion acknowledged that the plaintiffs
had alleged they gave timely notice of the tort claim to the
Merrick County clerk, but it asserted that such allegations were
insufficient to show compliance with § 13-905, because the
Merrick County clerk was not the proper official to receive
notice of tort claims on behalf of Litzenberg Memorial. 10
Plaintiffs’ Motion to Amend and
Proposed Amended Complaint
Prior to the hearing on Litzenberg Memorial’s § 6-1112(b)(6)
motion, the plaintiffs filed a motion seeking leave to amend
their complaint for the stated purposes of (1) correcting the
name of “Defendant ‘Litzenberg Memorial Long Term Care’”
and (2) alleging “additional relevant facts” to show compliance
with the PSCTA’s notice requirement. Attached to the plain-
tiffs’ motion was a proposed amended complaint.
The amended complaint referred to the skilled nursing
facility and the entity operating it as a political subdivision
known as Litzenberg Memorial Long Term Care, and it again
alleged that the plaintiffs had complied with the presuit notice
requirements of the PSTCA by filing notice of their tort claim
10 See § 13-905 (stating notice of tort claim must be filed with “the clerk,
secretary, or other official whose duty it is to maintain the official records
of the political subdivision”).

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
“with the Merrick County clerk within the statutorily required
time.” However, the amended complaint alleged new facts in
support of the allegation that the Merrick County clerk was
the proper official to serve with notice, including allegations
that Litzenberg Memorial used the Merrick County clerk to
act on its behalf and with its permission to file its official
licensure documents, to attend its board meetings, and to keep
and sign the minutes of such meetings.
Additionally, the amended complaint alleged that Litzenberg
Memorial 	should 	be 	equitably 	estopped 	from 	raising 	the
affirmative defense of noncompliance with the PSTCA’s notice
requirements based on certain representations made to the
plaintiffs’ counsel. In this regard, the amended complaint
alleged that after the plaintiffs’ counsel learned from public
filings that the skilled nursing facility was owned by Merrick
County, counsel sent an email to the Merrick County clerk,
stating, “I need to present a tort claim concerning Litzenberg
Memorial Long Term Care (skilled nursing facility)” and
asking whom the “proper person” was, under the PSTCA,
“to receive tort claim notices” for Litzenberg Memorial. The
Merrick County clerk replied by email, stating, “After speak-
ing with the County Attorney, that would be me.” The plain-
tiffs’ counsel then sent a followup email to the Merrick
County clerk, stating, “Are you also the proper person under
[the PSTCA], designated to receive[] tort claim notices for
Litzenberg Memorial Long Term Care (skilled nursing facil-
ity)? Just want to be certain before I mail this out.” [Emphasis
omitted.] The county clerk again replied by email, stating,
“Yes, that is what our County Attorney advised me.” A copy
of this email correspondence was attached as an exhibit to the
proposed amended complaint. Based on these representations,
the amended complaint alleged that principles of equitable
estoppel prevented Litzenberg Memorial from asserting that

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
the Merrick County clerk was not the proper official to receive
notice of a tort claim on its behalf. 11
Hearing on Motion to Dismiss
and Motion to Amend
A 	consolidated 	hearing 	was 	conducted 	on 	Litzenberg
Memorial’s motion to dismiss and the plaintiffs’ motion for
leave to amend. Both parties offered exhibits that the court
received and considered. No party asked that the motion to
dismiss be converted into a motion for summary judgment,
and the court determined it was unnecessary to do so, reason-
ing that the exhibits offered by the parties were “necessarily
embraced by the Complaint and [thus] are not considered mat-
ters outside the pleading.” 12
Because we ultimately resolve this appeal on procedural
grounds, we express no opinion on the propriety of considering
the exhibits for purposes of these motions. For clarity, how-
ever, we refer to certain exhibits to explain the court’s ruling.
District Court’s Ruling
In a judgment styled as an order entered August 5, 2024,
the district court overruled the plaintiffs’ motion for leave to
amend their complaint and granted Litzenberg Memorial’s
motion to dismiss the complaint for failure to state a claim.
In doing so, the court found that certain exhibits introduced
by Litzenberg Memorial established that the board of trustees
for Litzenberg Memorial had designated its board members,
but not the Merrick County clerk, as the proper officials to
serve with notice of a tort claim under the PSTCA. Based on
this evidence, the court concluded that neither the original
11 See, generally, Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317,
664 N.W.2d 461 (2003).
12 See, e.g., DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490
(2013) (recognizing that when ruling on motion to dismiss, court may not
consider materials outside pleadings but may consider materials that are
public record or are necessarily embraced by pleadings).

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
complaint nor the proposed amended complaint alleged suf-
ficient facts to show compliance with the PSTCA’s presuit
notice requirements, and it granted Litzenberg Memorial’s
motion to dismiss on that basis. Furthermore, relying on the
same evidence, the court concluded that the plaintiffs’ pro-
posed amended complaint did not allege a plausible claim
of equitable estoppel against Litzenberg Memorial and that
allowing the plaintiffs leave to amend would be futile.
The plaintiffs filed this timely appeal, which we moved to
our docket on our own motion.
ASSIGNMENTS OF ERROR
The plaintiffs assign, consolidated and restated, that the dis-
trict court erred by (1) denying their motion for leave to amend
the complaint, (2) granting Litzenberg Memorial’s motion to
dismiss, and (3) receiving evidence outside the pleadings with-
out converting the motion to dismiss into a motion for sum-
mary judgment. Because we conclude the first assignment is
dispositive, we do not address the others.
STANDARD OF REVIEW
[1,2] An appellate court reviews a district court’s denial of
a motion for leave to amend under § 6-1115(a) for an abuse
of discretion. 13 A judicial abuse of discretion exists if the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. 14
ANALYSIS
[3] 	When 	a 	plaintiff 	has 	moved 	for 	leave 	to 	amend
the complaint before the court rules on a motion to dismiss
the complaint, the court must first consider and rule upon the
13 Johnson v. City of Omaha, 319 Neb. 402, 23 N.W.3d 420 (2025); Sinu v.
Concordia University, 313 Neb. 218, 983 N.W.2d 511 (2023); Eadie v.
Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
14 State v. Damore, 320 Neb. 914, 31 N.W.3d 604 (2026).

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
pending motion to amend. 15 We therefore begin our analysis
by examining whether the district court abused its discretion
by overruling the plaintiffs’ motion for leave to file the pro-
posed amended complaint. For reasons we will explain, we
conclude it did.
We 	begin 	our 	analysis 	with 	the 	applicable 	court 	rule,
§ 6-1115(a). Although this rule was amended effective January
1, 2025, the version in effect during the relevant time period
provided, in relevant part:
A party may amend the party’s pleading once as a matter
of course before a responsive pleading is served or, if
the pleading is one to which no responsive pleading is
permitted, the party may amend it within 30 days after
it is served. Otherwise a party may amend the party’s
pleading only by leave of court or by written consent of
the adverse party, and leave shall be freely given when
justice so requires. 16
It appears from the record that the parties and the district
court may have treated Litzenberg Memorial’s § 6-1112(b)(6)
motion as a “responsive pleading” for purposes of § 6-1115(a)
and incorrectly assumed that the complaint could therefore be
amended only by leave of court. In the sections that follow,
we address the proper characterization of a motion to dismiss
and the impact of such a motion on a party’s right to amend
a pleading once as a matter of course under § 6-1115(a). We
then consider whether a party waives the right to amend as a
matter of course by filing an unnecessary motion seeking leave
to amend.
Motion to Dismiss Is Not Responsive Pleading
To the extent the parties and the trial court assumed that
Litzenberg Memorial’s motion to dismiss was a responsive
pleading for purposes of the right to amend as a matter of course
15 See, id.; Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424
(2011).
16 § 6-1115(a).

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
under § 6-1115(a), they were mistaken. Under Nebraska’s
pleading rules, a motion to dismiss under § 6-1112(b) is not a
pleading at all; it is a motion asserting a defense that must be
“made before pleading.” 17
[4] Neb. Ct. R. Pldg. § 6-1107(a) identifies the only “plead-
ings” allowed in Nebraska trial courts, and that list does not
include motions asserting any of the defenses available under
§ 6-1112(b). 18 Simply put, a motion to dismiss pursuant to
§ 6-1112(b) is not a responsive pleading for purposes of
§ 6-1115(a).
Plaintiffs Were Entitled to Amend Their
Complaint as Matter of Course
As stated, under the version of § 6-1115(a) in effect when
Litzenberg Memorial filed its motion to dismiss the plain-
tiffs’ complaint, a party was entitled to amend its pleading
once as a matter of course before a responsive pleading is
served. For the sake of completeness, we note that recent
amendments to § 6-1115(a) now impose a 14-day time limit
on the right to amend once as a matter of course after service
of either a responsive pleading or a motion to dismiss under
§ 6-1112(b). 19 But the version of § 6-1115(a) that was in
effect when Litzenberg Memorial filed its motion to dismiss
did not address motions to dismiss at all. As such, Litzenberg
17 See, § 6-1112(b) (rev. 2025) (identifying certain defenses that may be
made by motions and stating that “[a] motion asserting any of these
defenses must be made before pleading if a responsive pleading is
allowed”); § 6-1112(b) (as recodified effective July 18, 2008) (identifying
certain defenses that may be made by motions and stating that “[a] motion
making any of these defense[s] shall be made before pleading if further
pleading is permitted”).
18 See, § 6-1107(a)(1) through (8) (rev. 2025); § 6-1107(a) (as recodified
effective July 18, 2008).
19 See § 6-1115(a)(1)(B) (rev. 2025) (if pleading is one to which responsive
pleading is required, party may amend once as matter of course no later
than “14 days after service of a responsive pleading or 14 days after
service of a motion under § 6-1112(b), (e), or (f), whichever is earlier”).

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CYBORON v. MERRICK COUNTY
Cite as 321 Neb. 230
Memorial’s motion to dismiss had no impact on the plaintiffs’
entitlement to amend their complaint once as a matter of
course under § 6-1115(a). 20
Because the appellate record shows there had not yet been
a responsive pleading filed by any party when the plaintiffs’
sought leave to amend their complaint, the time to amend as a
matter of course under § 6-1115(a) had not yet expired and it
was not necessary to seek or obtain leave of court to do so. But
the plaintiffs did seek leave to amend, which raises an inter-
esting legal question this court has not yet considered: When
a party is entitled under § 6-1115(a) to amend a pleading once
as matter of course, does the party waive that right by filing
a motion seeking leave to amend? We turn to that question
now, and because Fed. R. Civ. P. 15 is substantially similar to
§ 6-1115, we look to federal decisions for guidance. 21
20 John P. Lenich, Nebraska Civil Procedure § 15:2 at 737 (2024) (noting
motion to dismiss is “is not a responsive pleading” and will not affect
party’s right to amend pleading as matter of course). Accord, e.g., 6
Charles Alan Wright et al. Federal Practice and Procedure § 1483 at 667-68
(3d ed. 2010) (recognizing that “a motion attacking a pleading is not a
responsive pleading as defined in [Fed. R. Civ. P.] 7” and that thus, such
a motion does “not prevent a party from subsequently amending without
leave of court”); McKinney v. Irving Independent School Dist., 309 F.3d
308, 315 (5th Cir. 2002) (“[b]ecause a [Fed. R. Civ. P.] 12(b)(6) motion to
dismiss is not a ‘responsive pleading,’ the filing of such a motion does not
extinguish a party’s right to amend as a matter of course”); Stein v. Royal
Bank of Canada, 239 F.3d 389 (1st Cir. 2001) (same); Bowden v. U.S.,
176 F.3d 552 (D.C. Cir. 1999) (same); Brisson v. Kathy A. Santoriello,
M.D., P.A., 134 N.C. App. 65, 68, 516 S.E.2d 911, 913 (1999), affirmed
in part as modified 351 N.C. 589, 528 S.E.2d 568 (2000) (holding that
for purposes of court rule entitling party to amend pleading “‘once as a
matter of course at any time before a responsive pleading is served,’” a
motion to dismiss pursuant to North Carolina’s counterpart to Nebraska’s
§ 6-1112(b)(6) is not a “‘responsive pleading’” and “‘does not itself
terminate plaintiff’s unconditional right to amend a complaint under’”
North Carolina’s counterpart to Nebraska’s § 6-1115(a)).
21 E.g., Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926
N.W.2d 610 (2019) (recognizing Nebraska courts may look to federal
decisions interpreting corresponding federal pleading rules for guidance).

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CYBORON v. MERRICK COUNTY
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Motion Seeking Leave to Amend Does Not
Waive Entitlement to Amend as Matter
of Course Under § 6-1115(a)
Many of the federal courts to have addressed this issue
have concluded that when a party unnecessarily moves for
leave to amend before the time for amending as a matter
of course has expired, the amendment is not subject to the
court’s discretion, but, instead, should be allowed as a matter
of course pursuant to the plain language of federal rule 15.
This rule has been applied in the Fourth, 22 Fifth, 23 Sixth, 24
Seventh, 25 Ninth, 26 and D.C. 27 Circuits, as well as by various
22 Galustian v. Peter, 591 F.3d 724 (4th Cir. 2010) (holding that no responsive
pleading had been filed, so plaintiff had absolute right to amend complaint
despite filing unnecessary motion; that trial court abused its discretion in
denying leave to amend; and that doctrine of futility had no application).
23 Zaidi v. Ehrlich, 732 F.2d 1218 (5th Cir. 1984) (holding that when
plaintiff has right to amend complaint because no responsive pleading
has been filed but nevertheless seeks leave to amend, court should allow
amendment and errs in denying leave).
24 Rogers v. Girard Trust Co., 159 F.2d 239, 241 (6th Cir. 1947) (holding that
when no responsive pleading has been filed, plaintiff is entitled to amend
complaint as matter of course; because leave to amend “was not necessary,
. . . it was error to deny the leave when asked”).
25 Peterson Steels v. Seidmon, 188 F.2d 193, 194 (7th Cir. 1951) (holding that
because “defendants had not served a responsive pleading, plaintiff was
entitled to file his amended complaint as a matter of course and was not
required to ask leave of court; it was error, however, to deny such leave
when the request was made”).
26 Nolen v. Fitzharris, 450 F.2d 958 (9th Cir. 1971) (holding that motion
to dismiss was not responsive pleading, that plaintiffs thus had right to
amend their complaint once as matter of course, and that court erred in
denying such right).
27 James v. Hurson Associates, Inc. v. Glickman, 229 F.3d 277, 283 (D.C.
Cir. 2000) (holding that motion to dismiss was not responsive pleading,
so plaintiff was entitled to amend his complaint “as a matter of right” and
court abused its discretion in disallowing such amendment).

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federal district courts. 28 The Eighth Circuit also follows this
rule and has expressly held that the “mere act of filing a
motion to amend or seeking leave to amend” does not “invoke
the district court’s discretionary authority to deny leave if
the amendment would otherwise fall within the purview of
the first sentence of [Fed. R. Civ. P.] 15(a).” 29 A leading
treatise describes this rule as “sound,” observing that “in
most cases, a party who makes a motion to amend before the
period for amendment as of course has expired does so inad-
vertently[,] and [that] treating the amendment as if it had been
made under [Fed. R. Civ. P.] 15(a)(1) avoids penalizing the
pleader for not understanding the rule.” 30
We are aware that some courts hold otherwise. For instance,
the Second 31 and Third 32 Circuits have held that when a party
who would otherwise be entitled to amend as a matter of
right nevertheless files a motion seeking leave to amend, the
court has discretion to deny the motion. And the 11th Circuit
appears to have split on the issue, with one panel holding that
a trial court “lacked the discretion” 33 to deny an amended
28 See, Doe #1 v. Syracuse University, 335 F.R.D. 356 (N.D.N.Y. 2020);
Cureton v. U.S. Marshal Service, 322 F. Supp. 2d 23 (D.D.C. 2004); Butler
v. McDonnell-Douglas Saudi Arabia Corp., 93 F.R.D. 384 (S.D. Ohio
1981); Jones v. Electrodyne Company, 224 F. Supp. 599 (W.D. Mo. 1963);
Simmons Co. v. Cantor, 3 F.R.D. 197 (W.D. Pa. 1943).
29 Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir.
2002).
30 6 Wright et al., supra note 20, § 1482 at 664-65.
31 Johnson v. University of Rochester Med. Center, 642 F.3d 121, 125
(2d Cir. 2011) (reasoning that because plaintiff’s motion did not seek
“permission to amend as of right,” trial court could exercise discretion to
deny request).
32 Centifanti v. Nix, 865 F.2d 1422, 1431 (3d Cir. 1989) (holding that even
though plaintiff was authorized under Fed. R. Civ. P. 15(a) to amend “as a
matter of course,” he sought leave to amend, so court would “treat this as
a case in which leave of court is required to amend”).
33 Williams v. Board of Regents of Univ. System of GA, 477 F.3d 1282, 1292
(11th Cir. 2007).

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complaint on the ground of futility when the plaintiff was
entitled to amend as a matter of course and a different panel
holding that a party waives the right to amend as a matter of
course by filing a motion to amend and inviting the court to
exercise its discretion. 34
[5] We think the rule followed by the Fifth, Sixth, Seventh,
Eighth, Ninth, and D.C. Circuits is sound, and we find it more
consistent with both the language and the intent of § 6-1115(a).
We therefore hold that when a party is entitled to amend a
pleading as a matter of course under rule § 6-1115(a), the party
does not waive that right by filing an unnecessary motion seek-
ing leave to amend, and the court should allow such amend-
ment as a matter of course.
Here, because the plaintiffs were entitled under § 6-1115(a)
to amend their complaint once as a matter of course, the order
denying them that substantial right amounted to an abuse of
discretion. We therefore reverse the judgment of the district
court and remand the cause with directions to allow the plain-
tiffs to amend their complaint, and to overrule Litzenberg
Memorial’s motion to dismiss as moot. 35
This procedural disposition does not permit us to reach
the merits of Litzenberg Memorial’s motion to dismiss, and
nothing in this opinion should be read to express an opinion
in that regard.
34 Coventry First, LLC v. McCarty, 605 F.3d 865 (11th Cir. 2010).
35 See, 6 Wright et al., supra note 20, § 1476 at 636-37 (“[o]nce an amended
pleading is interposed, the original pleading no longer performs any
function in the case”); Klein by Klein v. Caterpillar Inc., 581 F. Supp.
3d 912, 919 (E.D. Mich. 2022) (holding that once original complaint
is superseded, “‘there is no longer a live dispute about the propriety or
merit of the claims asserted therein; therefore, any motion to dismiss
such claims is moot’”); Scott v. Buckner Co., 388 F. Supp. 3d 1320 (D.
Colo. 2019) (recognizing motion to dismiss is moot when complaint has
been amended); Dykes v. Portfolio Recovery Associates, LLC, 306 F.R.D.
529 (E.D. Va. 2015) (holding amended pleading supersedes original, so
motions directed at superseded pleadings must be denied as moot).

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CONCLUSION
For the foregoing reasons, we conclude the district court
abused its discretion by not allowing the plaintiffs to amend
their complaint as a matter of course under § 6-1115(a). We
therefore reverse the judgment and remand the cause for fur-
ther proceedings consistent with this opinion.
Reversed and remanded for
further proceedings.
Miller-Lerman, J., not participating in the decision.
Bergevin, J., not participating.