Downs v. Hartford Life & Accident Insurance Company

Filing 13

ORDER signed by Judge Frank C. Damrell, Jr on 1/5/09 ORDERING that plaintiff may file an amended complaint as a matter of right. Such an amended complaint would moot the pending motion to dismiss and motion to strike 6 . Therefore, the court VACAT ES the hearings on defendant's pending motions and DENIES them as MOOT. Plaintiff shall file and serve his First Amended Complaint within ten (10) days of this Order. Defendants shall have thirty (30) days from the date of service thereof to file their responses. Motion terminated. (Becknal, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. HARTFORD LIFE and ACCIDENT INSURANCE COMPANY; and DOES 1 through 30, inclusive, Defendants. ----oo0oo---This matter is before the court on defendant Hartford Life and Accident Insurance Company's ("Hartford") motion to dismiss plaintiff's complaint and motion to strike jury demand. In his DONALD DOWNS, Plaintiff, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----

NO. CIV. 2:08-cv-2590 FCD DAD ORDER

opposition, plaintiff does not substantively respond to the motion, but rather, seeks leave to amend his complaint to state a claim pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA") against defendant Hartford and other parties. Under Rule 15(a) of the Federal Rules of Civil Procedure, a plaintiff may amend an original complaint "once as a matter of

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course" before being served with a responsive pleading. defendant's Rule 12 motion is not a responsive pleading.

A St.

Michael's Convalescent Hosp. v. State of Cal., 643 F.2d 1369, 1374 (9th Cir. 1980). Defendant removed this action to federal court on October 29, 2008, on the grounds that plaintiff's common law claims were preempted by ERISA. At the time of removal, defendant had not

filed an answer or otherwise responded to the complaint in state court. (Notice of Removal, filed Oct. 28, 2008, ¶ 6). Further,

defendant has not filed an answer or responsive pleading in this court. Accordingly, plaintiff may file an amended complaint as a Such an amended complaint would moot the Therefore, the

matter of right.

pending motion to dismiss and motion to strike.

court VACATES the hearings on defendant's pending motions and DENIES them as MOOT. Plaintiff shall file and serve his First Amended Complaint within ten (10) days of this Order. Defendants shall have thirty

(30) days from the date of service thereof to file their responses. IT IS SO ORDERED. DATED: January 5, 2009 FRANK C. DAMRELL, Jr. UNITED STATES DISTRICT JUDGE

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