O'Brien v. Welty et al

Filing 16

ORDER Vacating January 28, 2013 Hearing and Order on Defendants' 10 Motion to Dismiss, signed by District Judge Anthony W. Ishii on 1/16/2013. (IT IS HEREBY ORDERED that: 1. The January 28, 2013 hearing date is VACATED; and 2. Defendants motion to dismiss (Doc. No. 10) is DENIED as moot.)(Gaumnitz, R)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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DR. JOHN WELTY, et al.,
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Defendants.
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____________________________________)
NEIL O’BRIEN,

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1:12-CV-2017 AWI SAB
ORDER VACATING
JANUARY 28, 2013 HEARING
AND ORDER ON
DEFENDANTS’S MOTION TO
DISMISS
(Doc. No. 10)

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Defendants filed a Rule 12(b)(6) motion to dismiss on December 18, 2012. See Doc. No.
10. Hearing on this motion is set for January 28, 2013.

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On January 14, 2013, the parties filed a stipulation for Plaintiff to file an amended

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complaint, Plaintiff filed a first amended complaint, and the Magistrate Judge signed the

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stipulation. The active complaint is now the First Amended Complaint (Doc. No. 14). The

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“amended complaint supersedes the original, the latter being treated thereafter as non-existent.”

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux v. Rhay, 375 F.2d 55, 57

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(9th Cir. 1967). Because the December 18 motion to dismiss attacks a now superseded pleading,

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the motion to dismiss is moot. The Court will deny the motion and vacate the hearing.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The January 28, 2013 hearing date is VACATED; and

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2.

Defendants’ motion to dismiss (Doc. No. 10) is DENIED as moot.

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IT IS SO ORDERED.

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Dated:
ciem0h

January 16, 2013
SENIOR DISTRICT JUDGE