Ritzenthaler et al v. Bank of America Corporation et al
Filing
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ORDER denying as moot 22 Defendants' Motion to Dismiss; granting 25 Plaintiffs' Motion to Amend. The Amended Complaint at 25 is accepted as the operative complaint Signed by Judge James A Teilborg on 4/18/12.(TLJ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Jane Ritzenthaler; Richard Ritzenthaler, )
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Plaintiffs,
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vs.
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Bank of America; et al.,
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Defendants.
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No. CV 11-1500-PHX-JAT
ORDER
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Plaintiffs filed their Complaint on August 1, 2011. (1.) Defendants filed a Motion
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to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim
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on December 12, 2011. (Doc. 22.) Rather than filing a response to the Motion to Dismiss,
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Plaintiffs filed a Motion to Amend on December 20, 2011. (Doc. 25.)
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Federal Rule of Civil Procedure 15(a)(1) provides that a party may amend its pleading
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once as a matter of course within twenty-one days of service or, if the pleading is one to
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which a responsive pleading is required, within twenty-one days after service of the
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responsive pleading or a motion under Rule 12(b), whichever is earlier. None of the
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Defendants has filed an Answer. Defendants instead filed a motion under Rule 12(b).
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Plaintiffs filed their Motion to Amend within twenty-one days after Defendants filed their
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motion under Rule 12(b)(6). Plaintiffs therefore fall within the timing parameters for an
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amendment as a matter of course.
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Because Plaintiffs are entitled to an amendment as a matter of course pursuant to Rule
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15(a)(1)(B), the Court will grant their Motion to Amend. The Proposed Amended Complaint
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filed at Docket 25 is now the operative complaint in this case. Valadez-Lopez v. Chertoff,
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656 F.3d 851, 857 (9th Cir. 2011)(“[I]t is well established that an amended complaint
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supersedes the original, the latter being treated thereafter as non-existent.”). Because
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Defendants’ Motion to Dismiss is not directed at the new, operative complaint, the Court will
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deny their Motion to Dismiss as moot without prejudice to re-filing a motion directed toward
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the Amended Complaint.
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Accordingly,
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IT IS ORDERED Granting Plaintiffs’ Motion to Amend (Doc. 25). The Amended
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Complaint at Docket 25 is accepted as the operative complaint.
IT IS FURTHER ORDERED Denying as moot Defendants’ Motion to Dismiss
(Doc. 22).
DATED this 18th day of April, 2012.
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