Maria M. Gonzales v. First Franklin Loan Services et al

Filing 24

ORDER on Defendants' Motion to Dismiss and Motion to Strike Plaintiff's Complaint 11 , 13 , signed by Chief Judge Anthony W. Ishii on 8/27/09: Defendants' Motion to Dismiss and Strike are DENIED as MOOT. (Hellings, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 On July 17, 2009, Defendants Home Loan Services, Inc. (erroneously sued as First 16 Franklin Loan Services), First Franklin Financial Corporation, Bank of America, N.A., (as 17 successor by merger to LaSalee Bank, N.A., as trustee of the trust named as "Franklin Mortgage 18 Loan Trust"), and Mortgage Electronic Registration Systems, Inc. filed a Rule 12(b)(6) motion to 19 dismiss and a Rule 12(f) motion to strike portions of Plaintiff Maria Gonzalez's ("Plaintiff") 20 complaint. See Court's Docket Docs. No. 11 and 13. Hearing on both of these motions was 21 previously set for August 31, 2009. See id. at Doc. No. 11. On August 26, 2009, pursuant to 22 Local Rule 78-230(c),the court vacated the hearing dates and took the matter under submission 23 because Plaintiff did not timely file an opposition or statement of non-opposition by August 17, 24 2009. However, on August 25, 2006, Plaintiff had filed an amended complaint. No defendant 25 has filed any answer in this case. 26 Under Rule 15(a), "A party may amend the party's pleading once as a matter of course at 27 any time before a responsive pleading is served." Fed. R. Civ. Pro. 15(a); Crum v. Circus Circus 28 Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). "A motion to dismiss is not a `responsive ) ) Plaintiff, ) v. ) ) FIRST FRANKLIN LOAN SERVICES, ) et. al, ) ) Defendants. ) ____________________________________) MARIA M. GONZALEZ, NO. 1:09-CV-00941 AWI-GSA ORDER ON DEFENDANTS' MOTION TO DISMISS AND MOTION TO STRIKE PLAINTIFF'S COMPLAINT (Docs. Nos. 11 and 13 ) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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pleading' within the meaning of Rule 15." Crum, 231 F.3d at 1130 n.3; New v. Armour Pharmaceutical Co., 67 F.3d 716, 722 (9th Cir. 1995); see also Morrison v. Mahoney, 399 F.3d 1042, 1047 (9th Cir. 2005). A motion to strike also does not constitute a responsive pleading. Neifeld v. Steinberg, 438 F.2d 423, 425 n.3 (3d Cir. 1971); Phillips v. Borough of Keyport, 179 F.R.D. 140, 145-46 (D.N.J. 1998). Thus, where a motion to dismiss or motion to strike is filed instead of an answer, Rule 15(a) allows a plaintiff to amend the original complaint once as a matter of course without the need of obtaining leave of court. Fed. R. Civ. Pro. 15(a); Crum, 231 F.3d at 1130 n.3; Neifeld, 438 F.2d at 425, n.3. An "amended complaint supersedes the original, the latter being treated thereafter as non-existent." Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); see also Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Here, the Defendants did not file answers, but instead filed a motion to dismiss and motion to strike. As no prior amended complaints have been filed, Plaintiff was entitled to file her amended complaint as a matter of course under Rule 15(a). The amended complaint supersedes the original complaint, and the original complaint is treated as non-existent. Since Defendants' motions attack Plaintiff's original and now "non-existent" complaint, Defendants' motions are now moot.

Accordingly, IT IS HEREBY ORDERED that Defendants' motion to dismiss and motion to strike, which are Document Numbers 11 and 13 on the Court's docket, are DENIED as moot. IT IS SO ORDERED. Dated: ciem0h August 27, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE

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