Interval Equipment Solutions, Inc. v. Sandvik Mining and Construction USA, LLC

Filing 9

ORDER GRANTING Plaintiff Leave to Amend and DENYING AS MOOT 5 Defendant's Motion to Dismiss signed by Chief Judge Lawrence J. O'Neill on 5/16/2016. Defendant shall have twenty-one (21) days to respond to the first amended complaint. (Jessen, A)

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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INTERVAL EQUIPMENT SOLUTIONS, INC., 1:16-cv-512-LJO-SKO

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Plaintiff,

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ORDER GRANTING PLAINTIFF
LEAVE TO AMEND AND DENYING
AS MOOT DEFENDANT’S MOTION
TO DISMISS (Doc. 5)

v.

11 SANDVIK MINING AND CONSTRUCTION
USA, LLC,
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Defendant.

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On April 18, 2016, Defendant filed a motion under Fed. R. Civ. P. 12(b)(6) to dismiss Plaintiff’s

16 complaint. Doc. 5. Twenty-three days later, on May 11, 2016, Plaintiff filed a first amended complaint
17 (“FAC”). Under Fed. R. Civ. P. 15(a)(B), a plaintiff may file an amended complaint in response to a
18 Rule 12(b) motion without the Court’s or the defendant’s permission so long as it is filed within 21 days
19 after the Rule 12(b) motion is filed. If a plaintiff fails to comply with this 21-day deadline, any amended
20 complaint may be filed only with the defendant’s “written consent or the court’s leave.” Fed. R. Civ. P.
21 15(a)(2).
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Here, Plaintiff filed its FAC 23 days after Defendant filed its Rule 12(b)(6) motion to dismiss.

23 Plaintiff therefore was permitted to file the FAC only with Defendant’s written consent or the Court’s
24 leave. Id. Defendant has not consented explicitly to the filing of the FAC, but appears not to object to the
25 FAC’s consideration, as Defendant filed a notice withdrawing its motion to dismiss in light of the FAC.
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Under these circumstances, the Court finds leave to amend is appropriate. Accordingly, the FAC shall be

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considered the operative complaint in this case. Defendant shall have twenty-one (21) days from the date

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of entry of this order to respond to the FAC.

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Because Defendant has withdrawn its motion to dismiss (Doc. 5), the Clerk of Court is directed
to administratively terminate that motion.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

May 16, 2016

UNITED STATES CHIEF DISTRICT JUDGE
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