Filed: May 20, 2019
Latest Update: May 20, 2019
Summary: ORDER VACATING HEARING AND DENYING MOTION TO DISMISS AS MOOT ANTHONY W. ISHII , District Judge . On May 3, 2019, Defendant filed a Rule 12(b)(6) motion to dismiss. See Doc. No. 10. Hearing on this motion is set for June 3, 2019. On May 20, 2019, Plaintiff filed a first amended complaint. See Doc. No. 12. Federal Rule of Civil Procedure 15 governs amended pleadings. In pertinent part, Rule 15(a) reads: "A party may amend its pleading once as a matter of course within . . ., if the plead
Summary: ORDER VACATING HEARING AND DENYING MOTION TO DISMISS AS MOOT ANTHONY W. ISHII , District Judge . On May 3, 2019, Defendant filed a Rule 12(b)(6) motion to dismiss. See Doc. No. 10. Hearing on this motion is set for June 3, 2019. On May 20, 2019, Plaintiff filed a first amended complaint. See Doc. No. 12. Federal Rule of Civil Procedure 15 governs amended pleadings. In pertinent part, Rule 15(a) reads: "A party may amend its pleading once as a matter of course within . . ., if the pleadi..
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ORDER VACATING HEARING AND DENYING MOTION TO DISMISS AS MOOT
ANTHONY W. ISHII, District Judge.
On May 3, 2019, Defendant filed a Rule 12(b)(6) motion to dismiss. See Doc. No. 10. Hearing on this motion is set for June 3, 2019. On May 20, 2019, Plaintiff filed a first amended complaint. See Doc. No. 12.
Federal Rule of Civil Procedure 15 governs amended pleadings. In pertinent part, Rule 15(a) reads: "A party may amend its pleading once as a matter of course within . . ., if the pleading is one to which a responsive pleading is required, 21 days after service of the responsive pleading or 21 days after service of a motion under Rule 12(b) . . . ." Fed. R. Civ. P. 15(a)(1)(B). A properly filed "amended complaint supersedes the original [complaint], the latter being treated thereafter as non-existent." Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 20015); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
Here, Plaintiff's amended complaint is timely under Rule 15(a)(1)(B) since it was filed within 21 days of the motion to dismiss. Defendant's motion now attacks a complaint that is no longer operative. Ramirez, 806 F.3d at 1008. Therefore, the hearing on Defendant's motion to dismiss will be vacated and the motion will be denied as moot. Id.
Accordingly, IT IS HEREBY ORDERED that:
1. The June 3, 2019, hearing is VACATED;
2. Defendant's motion to dismiss (Doc. No. 10) is DENIED as MOOT; and
3. Defendant may file a responsive motion or pleading to the First Amended Complaint within twenty-one (21) days of service of this order.
IT IS SO ORDERED.
