Deering Therapy Services Limited v. Reno et al

Filing 16

ORDER: IT IS ORDERED that Plaintiff shall file a Response to Defendants' Motion to Dismiss (Doc. 10 ) within seven days of issuance of this Order. (See attached Order for details). Signed by Judge John J Tuchi on 11/9/17. (JAMA) Modified on 11/9/2017 to add WO (JAMA).

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Deering Therapy Services Limited,
Plaintiff,

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ORDER

v.

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No. CV-17-08171-PCT-JJT

Christopher Reno, et al.,

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Defendants.

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At issue is Plaintiff’s Amended Complaint (Doc. 13) and Notice to Deem
Defendants’ Motion to Dismiss as Moot (Doc. 14).

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A party may amend a complaint once as a matter of course within 21 days after

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serving it, or within 21 days of service of, among others, a Rule 12(b)(6) motion. Fed. R.

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Civ. P. 15(a). Plaintiff filed its Amended Complaint fourteen days after Defendants’

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Motion to Dismiss. Thus, Plaintiff was well within its right to do so. Ordinarily, the

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“amended complaint supersedes the original.” Ramirez v. Cty. of San Bernardino, 806

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F.3d 1002, 1008 (9th Cir. 2015). Nevertheless, “defendants should not be required to file

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a new motion to dismiss simply because an amended pleading was introduced while their

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motion was pending,” particularly “[i]f some of the defects raised in the original motion

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remain.” 6 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1476

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(3d ed.).

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Plaintiff’s Amended Complaint includes 21 lines of new allegations in addition to

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minor edits throughout the document to reflect these additions. (See Doc. 12-1.) Plaintiff,

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however, did not remove any allegation nor did Plaintiff add any new count. At first

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glance, it is not clear that these amendments adequately address the concerns raised in the

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Motion to Dismiss, and Plaintiff’s “Notice” of mootness provides no explanation to guide

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this Court. Moreover, as required by this Court, the parties held a meet-and-confer prior

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to the filing of the Motion to Dismiss. (See Doc 10-1; Doc. 7, Order.) In this meeting, the

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parties were to determine whether any amendment to the Complaint would be futile for

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purposes of a Motion to Dismiss. (See Doc. 7, Order.) Because the parties “were unable

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to agree that the pleading is curable by a permissible amendment,” (Doc. 12-1), the Court

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deems the Motion to Dismiss applicable with equal force to the Amended Complaint.

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Therefore, although the Court is most appreciative of the opinion stated in Plaintiff’s

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“Notice,” the Court finds that Defendants’ Motion to Dismiss is not moot. Plaintiff must

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file a responsive brief within seven days of this Order.

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IT IS THEREFORE ORDERED that Plaintiff shall file a Response to
Defendants’ Motion to Dismiss (Doc. 10) within seven days of issuance of this Order.
Dated this 9th day of November, 2017.

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Honorable John J. Tuchi
United States District Judge

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