Gonzalez v. Homeq Servicing, et al

Filing 13

MEMORANDUM DECISION and ORDER DENYING Defendant's Motion to Dismiss as MOOT 7 and VACATING Oral Argument Set for September 14, 2009, signed by Judge Oliver W. Wanger on 9/3/09. (Hellings, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On June 15, 2009, Defendant Homeq Servicing ("Defendant") filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). to the original Complaint of The motion is directed Cecilia Gonzalez v. HOMEQ SERVICING; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; and DOES 1 TO 100, inclusive, Defendants. CECILIA GONZALEZ Plaintiff, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 1:09-CV-00951-OWW-SMS MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS AS MOOT (Doc. 7) AND VACATING ORAL ARGUMENT SET FOR SEPTEMBER 14, 2009

Plaintiff

("Plaintiff").

On June 16, 2009, Plaintiff filed a First Amended

Complaint. (Doc. 9.) Federal Rule of Civil Procedure 15(a)(1)(A) provides that a party may amend its pleading once "as a matter of course" "before being served with a responsive pleading." Defendant's motion to

dismiss is not a responsive pleading under Rule 15(a)(1)(A). Schreiber Distrib. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). When, as here, Rule 15(a)(1)(A) applies, it

provides an "absolute right to amend." Rick-Mik Enters., Inc. v. Equilon Enters., LLC, 532 F.3d 963, 977 (9th Cir. 2008). Amended Complaint is now the operative pleading. 1 The First

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant's motion to dismiss is DENIED as moot, and oral argument set for September 14, 2009, is VACATED.

IT IS SO ORDERED. Dated: 9i274f September 3, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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