Valtierra v. Wells Fargo Bank N.A.

Filing 11

ORDER DENYING, AS MOOT, defendant's Motions to Dismiss and to Strike, documents 4 and 5 , as plaintiff has filed an amended complaint; hearings re same set for 7/6/2010 are VACATED; order signed by Chief Judge Anthony W. Ishii on 6/30/2010. (Rooney, M)

Valtierra v. Wells Fargo Bank N.A.

Doc. 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 In this case, Defendant Wells Fargo Bank, N.A. has filed a motion to dismiss for failure 17 to state a claim and a motion to strike portions of the complaint. Subsequently, Plaintiff Rafael 18 Valtierra filed an amended complaint on June 21, 2010. Under Rule 15(a), "A party may amend 19 the party's pleading once as a matter of course at any time before a responsive pleading is 20 served." Fed. R. Civ. Proc. 15(a)(1)(A). "A motion to dismiss is not a `responsive pleading' 21 within the meaning of Rule 15." Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th 22 Cir. 2000). An "amended complaint supersedes the original, the latter being treated thereafter as 23 non-existent." Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). 24 Defendant has not filed an answer. As no prior amended complaints have been filed, 25 Plaintiff is entitled to file the amended complaint as a matter of course under Rule 15(a). Since 26 Defendant's motions seek dismissal and/or striking of the original and now "non-existent" 27 complaint, Defendant's motions are moot. 28 1 RAFAEL VALTIERRA, ) ) Plaintiff, ) ) v. ) ) WELLS FARGO BANK, N.A., successor ) in interest to WACHOVIA and DOES 1 ) through 50, inclusive, ) ) Defendants. ) ____________________________________) CIV-F-10-0849 AWI GSA ORDER DENYING MOTIONS DUE TO FILING OF NEW AMENDED COMPLAINT UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Docs. 4 and 5

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Accordingly, IT IS HEREBY ORDERED that Defendant's motion to dismiss and motion to strike are DENIED as moot.

IT IS SO ORDERED. Dated: 0m8i78 June 30, 2010 CHIEF UNITED STATES DISTRICT JUDGE

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