Moreno Ortega v. Nissan North America, Inc.

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Erica P. Grosjean on 1/19/2023 recommending as follows: IT IS RECOMMENDED that Defendant's motion to dismiss (ECF No. 6 ) be denied as moot. These findings and recommendations are submit ted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with t he Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). (Rooney, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 CARLOS EMMANUEL MORENO ORTEGA, Plaintiff, 12 13 14 Case No. 1:22-cv-01581-ADA-EPG FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANT’S MOTION TO DISMISS AS MOOT v. NISSAN NORTH AMERICA, INC., (ECF No. 6) Defendant. 15 16 17 On December 9, 2022, Plaintiff filed this action bringing California state law claims arising from an allegedly defective vehicle. (ECF No. 1). On January 4, 2023, Defendant filed a 18 19 20 21 motion to dismiss under Federal Rule of Civil Procedure 12(b). (ECF No. 6). On January 12, 2023, the presiding District Judge referred the motion to dismiss for the preparation of findings and recommendations or other appropriate action. (ECF No. 9). On January 18, 2023, Plaintiff filed a first amended complaint. (ECF No. 10). 22 As Plaintiff’s amended complaint supersedes the original complaint, Defendant’s motion 23 to dismiss is moot. See Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) 24 (“Because the Defendants’ motion to dismiss targeted the Plaintiff’s First Amended Complaint, 25 which was no longer in effect [after Plaintiff filed a Second Amended Complaint], we conclude 26 that the motion to dismiss should have been deemed moot before the district court granted it.”). 27 Accordingly, IT IS RECOMMENDED that Defendant’s motion to dismiss (ECF No. 6) 28 be denied as moot. 1 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 3 days after being served with these findings and recommendations, any party may file written 4 objections with the Court. Such a document should be captioned “Objections to Magistrate 5 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 6 7 8 9 10 within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 11 12 Dated: January 19, 2023 /s/ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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