Ritzenthaler et al v. Bank of America Corporation et al

Filing 27

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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Jane Ritzenthaler; Richard Ritzenthaler, ) ) ) Plaintiffs, ) ) vs. ) ) ) Bank of America; et al., ) ) Defendants. ) ) No. CV 11-1500-PHX-JAT ORDER 15 16 Plaintiffs filed their Complaint on August 1, 2011. (1.) Defendants filed a Motion 17 to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim 18 on December 12, 2011. (Doc. 22.) Rather than filing a response to the Motion to Dismiss, 19 Plaintiffs filed a Motion to Amend on December 20, 2011. (Doc. 25.) 20 Federal Rule of Civil Procedure 15(a)(1) provides that a party may amend its pleading 21 once as a matter of course within twenty-one days of service or, if the pleading is one to 22 which a responsive pleading is required, within twenty-one days after service of the 23 responsive pleading or a motion under Rule 12(b), whichever is earlier. None of the 24 Defendants has filed an Answer. Defendants instead filed a motion under Rule 12(b). 25 Plaintiffs filed their Motion to Amend within twenty-one days after Defendants filed their 26 motion under Rule 12(b)(6). Plaintiffs therefore fall within the timing parameters for an 27 amendment as a matter of course. 28 Because Plaintiffs are entitled to an amendment as a matter of course pursuant to Rule 1 15(a)(1)(B), the Court will grant their Motion to Amend. The Proposed Amended Complaint 2 filed at Docket 25 is now the operative complaint in this case. Valadez-Lopez v. Chertoff, 3 656 F.3d 851, 857 (9th Cir. 2011)(“[I]t is well established that an amended complaint 4 supersedes the original, the latter being treated thereafter as non-existent.”). Because 5 Defendants’ Motion to Dismiss is not directed at the new, operative complaint, the Court will 6 deny their Motion to Dismiss as moot without prejudice to re-filing a motion directed toward 7 the Amended Complaint. 8 Accordingly, 9 IT IS ORDERED Granting Plaintiffs’ Motion to Amend (Doc. 25). The Amended 10 11 12 13 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. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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