McFarland v. City of Clovis et al

Filing 14

ORDER Vacating Hearing and Order on 6 Motion to Dismiss, signed by District Judge Anthony W. Ishii on 12/2/2015. (IT IS HEREBY ORDERED that: 1. The December 14, 2015, hearing on Defendants' motion is VACATED; 2. Defendants' motion to dismiss (Doc. No. 6) is DENIED as MOOT; and 3. Defendants may file an answer or other responsive motion or pleading to the First Amended Complaint within ten (10) days of service of this order.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LYLE S. McFARLAND,

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CASE NO. 1:15-CV-01530-AWI-SMS

Plaintiff
ORDER VACATING HEARING AND
ORDER ON MOTION TO DISMISS

v.
CITY OF CLOVIS, et al.,

(Doc. No. 6)
Defendants

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Currently pending before the Court is Defendants’ motion to dismiss. The motion is set to

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be heard on December 14, 2015. The motion to dismiss was filed on November 5, 2015.

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However, on November 23, 2015, Plaintiff filed an amended complaint.

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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 the responsive

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pleading or 21 days after service of a motion under Rule 12(b) . . . .” Fed. R. Civ. P. 15(a)(1)(B).

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Amendments made within the time limits of Rule 15(a)(1) as a matter of course do not require

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leave of court. See Reeves v. Fed. Bureau of Prisons, 885 F.Supp.2d 384, 388 n.4 (D. D.C. 2012);

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cf. Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). A properly filed

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

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existent.” Ramirez v. County of San Bernardino, --- F.3d ---, 2015 U.S. App. LEXIS 20277, *15

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(9th Cir. 2015); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Here, Plaintiff's amended complaint is timely under Rule 15(a)(1)(B) since it was filed

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within 21 days of the motion to dismiss. Defendants’ motion now attacks a complaint that is no

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longer operative. Ramirez, --- F.3d ---, 2015 U.S. App. LEXIS 20277 at *15. Therefore,

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Defendants' motion to dismiss will be denied as moot. Id.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The December 14, 2015, hearing on Defendants' motion is VACATED;

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2.

Defendants’ motion to dismiss (Doc. No. 6) is DENIED as MOOT; and

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3.

Defendants may file an answer or other responsive motion or pleading to the First

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Amended Complaint within ten (10) days of service of this order.

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IT IS SO ORDERED.
Dated: December 2, 2015
SENIOR DISTRICT JUDGE

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