Bylas v. United States of America

Filing 12

ORDER denying defendant's 5 Motion to Dismiss on grounds of mootness. Signed by Judge Frederick J Martone on 12/1/11.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kristy Joy Bylas,
Plaintiff,

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vs.

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United States of America,
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Defendant.
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CV 11-02107-PHX-FJM
ORDER

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The court has before it defendant's motion to dismiss (doc. 5) and plaintiff's response
(doc. 8). Defendant did not file a reply, and the time for replying has expired.

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This case arises from injuries to plaintiff's hand resulting from a necrotizing infection.

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Plaintiff alleges that the care she received from the San Carlos Indian Health Service

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Hospital in San Carlos, Arizona constituted medical malpractice. Defendant filed a motion

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to dismiss on October 26, 2011, arguing that the complaint should be dismissed pursuant to

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Rule 12(b)(6), Fed. R. Civ. P. for failure to state a claim. Alternatively, defendant argues that

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the complaint must be dismissed for failure to file a certifying statement whether expert

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opinion testimony is necessary as required by Arizona law. Plaintiff has since filed the

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certificate (doc. 9).

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On November 18, 2011, plaintiff filed her first amended complaint (doc. 10). A party

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may amend its pleading once as a matter of course within twenty-one days after service of

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a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1)(B). An amended complaint supercedes the

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original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Because

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plaintiff's amendment was timely, this action is now proceeding under the first amended

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complaint and defendant's motion to dismiss is rendered moot.

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IT IS ORDERED DENYING defendant's motion to dismiss on grounds of mootness
(doc. 5).
DATED this 1st day of December, 2011.

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