Deering Therapy Services Limited v. Reno et al
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).
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Deering Therapy Services Limited,
Christopher Reno, et al.,
At issue is Plaintiff’s Amended Complaint (Doc. 13) and Notice to Deem
Defendants’ Motion to Dismiss as Moot (Doc. 14).
A party may amend a complaint once as a matter of course within 21 days after
serving it, or within 21 days of service of, among others, a Rule 12(b)(6) motion. Fed. R.
Civ. P. 15(a). Plaintiff filed its Amended Complaint fourteen days after Defendants’
Motion to Dismiss. Thus, Plaintiff was well within its right to do so. Ordinarily, the
“amended complaint supersedes the original.” Ramirez v. Cty. of San Bernardino, 806
F.3d 1002, 1008 (9th Cir. 2015). Nevertheless, “defendants should not be required to file
a new motion to dismiss simply because an amended pleading was introduced while their
motion was pending,” particularly “[i]f some of the defects raised in the original motion
remain.” 6 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1476
Plaintiff’s Amended Complaint includes 21 lines of new allegations in addition to
minor edits throughout the document to reflect these additions. (See Doc. 12-1.) Plaintiff,
however, did not remove any allegation nor did Plaintiff add any new count. At first
glance, it is not clear that these amendments adequately address the concerns raised in the
Motion to Dismiss, and Plaintiff’s “Notice” of mootness provides no explanation to guide
this Court. Moreover, as required by this Court, the parties held a meet-and-confer prior
to the filing of the Motion to Dismiss. (See Doc 10-1; Doc. 7, Order.) In this meeting, the
parties were to determine whether any amendment to the Complaint would be futile for
purposes of a Motion to Dismiss. (See Doc. 7, Order.) Because the parties “were unable
to agree that the pleading is curable by a permissible amendment,” (Doc. 12-1), the Court
deems the Motion to Dismiss applicable with equal force to the Amended Complaint.
Therefore, although the Court is most appreciative of the opinion stated in Plaintiff’s
“Notice,” the Court finds that Defendants’ Motion to Dismiss is not moot. Plaintiff must
file a responsive brief within seven days of this Order.
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.
Honorable John J. Tuchi
United States District Judge
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