Gallagher v. Scottsdale Unified School District, et al

Filing 25

ORDER denying 6 dfts' motion to dismiss as moot. This order is without prejudice to dfts' right to move to dismiss pla's amended complaint. Signed by Judge Frederick J Martone on 8/29/08.(KMG)

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Scottsdale Unified School District, et al. ) ) ) Defendants. ) ) K. P. Gallagher,

No. CV-08-1173-PHX-FJM ORDER

The court has before it defendants' motion to dismiss (doc 6), plaintiff's response (doc. 13), and defendants' reply (doc. 14). Defendants argue that plaintiff's original complaint must be dismissed because it fails to comply with the minimal pleading requirements of Rule 8(a)(2), Fed. R. Civ. P., and because it is barred by the relevant statute of limitations. Plaintiff's original complaint is strikingly vague. However, on July 16, 2008, after defendants' filed their motion to dismiss, plaintiff filed an amended complaint. A party may amend its pleading once as a matter of course before a responsive pleading is served. Fed. R. Civ. P. 15(a)(1)(A). A motion to dismiss is not a responsive pleading. Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995). Therefore, plaintiff had a right to amend her complaint without leave of the court. As a general rule, an amended complaint supercedes a prior complaint. Therefore,

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defendants' motion to dismiss is rendered moot because this action is now proceeding on plaintiff's amended complaint. IT IS ORDERED DENYING defendants' motion to dismiss as moot (doc. 6). This order is without prejudice to defendants' right to move to dismiss plaintiff's amended complaint. DATED this 29th day of August, 2008.

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