Padilla v. Banner Health

Filing 8

ORDER that Plaintiff's 7 Motion for Leave to File Amended Complaint is DENIED as unnecessary. IT IS FURTHER ORDERED that Plaintiff must file her First Amended Complaint, without underlines, strikeouts, or attaching a copy of the original C omplaint, on or before Friday, November 30, 2012, and mail a complete copy of the First Amended Complaint and any attachments to Defendant Banner Health, c/o Stephanie Quincy. Signed by Magistrate Judge Lawrence O Anderson on 11/19/2012. (See Order for details.)(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Banner Health dba Banner Health Del E.)
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Webb Medical Center,
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Defendant.
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Artemisa Padilla

CV-12-1767-PHX-LOA
ORDER

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This case arises on pro se Plaintiff’s Motion for Leave to File Amended Complaint,

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filed on November 13, 2012. (Doc. 7) Plaintiff’s proposed 27-page First Amended

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Complaint is attached to the Motion, noting the changes by underlines and strikeouts as

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mandated by LRCiv 15.1.

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Federal Rule of Civil Procedure 15(a)(1) provides that “[a] party may amend [her]

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pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading

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is one to which a responsive pleading is required, 21 days after service of a responsive

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pleading . . . .” (emphasis added) Plaintiff has not yet exhausted her right to amend once as

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a matter of course without seeking leave of the Court. The docket reflects Defendant signed

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a waiver of service of summons, doc. 6, on October 22, 2012, and has 60 days from October

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2, 2012 to answer or file a motion under Rule 12, Fed.R.Civ.P. If a defendant “has timely

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waived service” under Rule 4(d), Fed.R.Civ.P., that defendant “must serve an answer . . .

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within 60 days after the request for a waiver was sent . . . .” Rule 12(a)(1)(A)(ii),

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Fed.R.Civ.P. To date, Defendant Banner Health has neither answered nor otherwise

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appeared; however, the time to do so has not expired. “For purposes of Rule 15(a)(1), a

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responsive pleading includes an answer, . . . but not a motion.” Stejic v. Aurora Loan Servs.,

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LLC, 2009 WL 2970497 (D. Ariz. Sept. 11, 2009) (citing Fed.R.Civ.P. 7(a) (listing allowed

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pleadings as complaint, answer to a complaint, answer to a counterclaim designated as a

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counterclaim, answer to a crossclaim, third-party complaint, answer to a third-party

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complaint, and reply to an answer)). According to Rule 15’s Advisory Committee Notes to

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the 2009 Amendments, “[l]eave to amend should be granted as a matter of course, at least

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until the defendant files a responsive pleading.” “After that point, leave to amend should be

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granted unless amendment would cause prejudice to the opposing party, is sought in bad

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faith, is futile, or creates undue delay.” Stejic, 2009 WL 2970497, at *1 (quoting Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)) (emphasis in original;

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internal quotation marks omitted).

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The Court concludes that, pursuant to Rule 15(a)(1)(B), the First Amended Complaint

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may be filed without the Court’s leave. See Hylton v. Anytime Towing, 2012 WL 1019829,

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at *2 (S.D. Cal. March 26, 2012) (citing Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638

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(9th Cir. 1988); 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal

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Practice and Procedure, § 1481 at 661-62 (3d ed. 2010)). A first amended complaint,

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however, supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990).

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After amendment, a district court will treat the original complaint as nonexistent. Ferdik, 963

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F.2d at 1262. Any cause of action that was raised in the original complaint is waived if it is

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not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Based on the foregoing,

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IT IS ORDERED Plaintiff’s Motion for Leave to File Amended Complaint, doc. 7,

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is DENIED as unnecessary.

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IT IS FURTHER ORDERED that Plaintiff must file her First Amended Complaint,

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without underlines, strikeouts, or attaching a copy of the original Complaint, on or before

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Friday, November 30, 2012, and mail a complete copy of the First Amended Complaint and

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any attachments to Defendant Banner Health, c/o Stephanie Quincy, Steptoe & Johnson LLP,

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201 E. Washington St., Suite 1600, Phoenix, AZ 85004-2382.

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Dated this 19th day of November, 2012.

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