O'Brien v. Welty et al

Filing 16

ORDER Vacating January 28, 2013 Hearing and Order on Defendants' 10 Motion to Dismiss, signed by District Judge Anthony W. Ishii on 1/16/2013. (IT IS HEREBY ORDERED that: 1. The January 28, 2013 hearing date is VACATED; and 2. Defendants motion to dismiss (Doc. No. 10) is DENIED as moot.)(Gaumnitz, R)

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1 2 IN THE UNITED STATES DISTRICT COURT FOR THE 3 EASTERN DISTRICT OF CALIFORNIA 4 5 ) ) Plaintiff, ) v. ) ) DR. JOHN WELTY, et al., ) ) Defendants. ) ____________________________________) NEIL O’BRIEN, 6 7 8 9 1:12-CV-2017 AWI SAB ORDER VACATING JANUARY 28, 2013 HEARING AND ORDER ON DEFENDANTS’S MOTION TO DISMISS (Doc. No. 10) 10 11 12 13 Defendants filed a Rule 12(b)(6) motion to dismiss on December 18, 2012. See Doc. No. 10. Hearing on this motion is set for January 28, 2013. 14 On January 14, 2013, the parties filed a stipulation for Plaintiff to file an amended 15 complaint, Plaintiff filed a first amended complaint, and the Magistrate Judge signed the 16 stipulation. The active complaint is now the First Amended Complaint (Doc. No. 14). The 17 “amended complaint supersedes the original, the latter being treated thereafter as non-existent.” 18 Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux v. Rhay, 375 F.2d 55, 57 19 (9th Cir. 1967). Because the December 18 motion to dismiss attacks a now superseded pleading, 20 the motion to dismiss is moot. The Court will deny the motion and vacate the hearing. 21 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. The January 28, 2013 hearing date is VACATED; and 24 2. Defendants’ motion to dismiss (Doc. No. 10) is DENIED as moot. 25 IT IS SO ORDERED. 26 27 28 Dated: ciem0h January 16, 2013 SENIOR DISTRICT JUDGE