Lipscomb et al v. Mortgage Electronic Registration Systems, Inc. et al

Filing 9

ORDER DENYING AS MOOT 4 Defendants' Motion to Dismiss signed by Chief Judge Anthony W. Ishii on 5/23/2011. Defendants may file either a responsive pleading or a responsive motion no later than twenty-one (21) days from the service of this order. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiffs,
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v.
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MORTGAGE ELECTRONIC
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REGISTRATION SYSTEM, INC., et al., )
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Defendants.
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____________________________________)
FREDERICK R. LIPSCOMB and
ROILYNEE M. LIPSCOMB,

1:11-CV-497 AWI JLT
ORDER DENYING MOTION
TO DISMISS AS MOOT
(Doc. No. 4)

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On April 19, 2011, Defendants filed a Rule 12(b)(6) motion to dismiss. See Court’s

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Docket Doc. No. 4. On May 6, 2011, Plaintiffs filed an opposition which stated that the Court

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should deny the motion to dismiss because Plaintiffs were going to file an amended complaint.

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See id. at Doc. No. 6. On May 9, 2011, Plaintiffs filed an amended complaint. See id. at Doc.

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No. 7.

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Federal Rule of Civil Procedure 15 governs amended pleadings. In pertinent part, Rule

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15(a) reads: “A party may amend its pleading once as a matter of course within . . ., if the

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pleading is one to which a response pleading is required, . . . 21 days after service of a motion

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under Rule 12(b) . . . .” Fed. R. Civ. Pro. 15(a)(1)(B). Thus, where a Rule 12(b) motion to

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dismiss is filed, Rule 15(a) allows a plaintiff to amend the original complaint once as a matter of

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course within 21 days of the motion and without the need of obtaining leave of court. See Fed.

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R. Civ. Pro. 15(a)(B)(1); Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000).

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An “amended complaint supersedes the original, the latter being treated thereafter as non-

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existent.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967).

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Here, in response to Defendants’ Rule 12(b)(6) motion, Plaintiffs had until May 10, 2011,

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to file an amended complaint pursuant to Rule 15(a)(1)(B)’s 21 day time limit. Since Plaintiffs

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filed their amended complaint on May 9, 2011, Plaintiffs timely amended the complaint.

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See Court’s Docket Doc. No. 7. As a result, the amended complaint supersedes the original

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complaint, and the original complaint is treated as non-existent. See Forsyth, 114 F.3d at 1474;

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Loux, 375 F.2d at 57. Because Defendants’ motion attacks Plaintiffs’ original and now “non-

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existent” complaint, Defendants’ motion to dismiss is now moot.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Defendants’ motion to dismiss is DENIED as moot; and

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2.

Defendants may file either a responsive pleading or a responsive motion no later than

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twenty-one (21) days from the service of this order.
IT IS SO ORDERED.

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Dated:
0m8i78

May 23, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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