Soto et al v. Countrywide Home Loans et al

Filing 17

ORDER signed by Judge Garland E. Burrell, Jr. on 09/16/09 ORDERING that the 11 Motion to Dismiss is DENIED as moot. (Benson, A.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 On August 6, 2009, Defendants Countrywide Home Loans and Mortgage 19 Electronic Registration Systems, Inc. ("Defendants") filed a Rule 20 12(b)(6) motion to dismiss and a Rule 12(f) motion to strike portions 21 of the Plaintiffs' complaint (Docket No. 11.) 22 2009, Plaintiffs filed a first amended complaint (Docket No. 15.) 23 Under Rule 15(a)(1) "[a] party may amend its pleading once as a 24 matter of course: before being served with a responsive pleading...." 25 Fed. R. Civ. P. 15(a)(1)(A). 26 27 28 This matter was determined to be suitable for decision without oral argument. E.D. Cal. R. 78-230(h). 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

JOSE SOTO AND ALICIA SOTO, Plaintiffs, v. COUNTRYWIDE HOME LOANS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., COUNTRYWIDE FULL SPECTRUM LENDING AND DOES 1-20 INCLUSIVE Defendants.

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2:09-cv-01546-GEB-EFB ORDER*

However, on August 8,

Here, no Defendant has filed an answer

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in this case, and neither a motion to dismiss nor a motion to strike are considered responsive pleadings for the purposes of Rule 15(a). See Crum v. Circus Circus Enter., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000)("A motion to dismiss is not a `responsive pleading' within the meaning of Rule 15."); Phillips v. Borough of Keyport, 179 F.R.D. 140, 145-46 (D. N.J. 1998)(stating that a motion to strike is not a responsive pleading for the purposes of Rule 15). Since Plaintiffs were authorized to amend their original complaint, the first amended complaint is now the operative pleading. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997)(stating that an amended complaint supersedes the original complaint). Therefore, Defendants' pending motions which do not

address the operative pleading are denied as moot. Dated: September 16, 2009

GARLAND E. BURRELL, JR. United States District Judge

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