Schneider v. Amador County et al

Filing 15

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/29/2010 ORDERING that Defendants' 9 motion to dismiss is DENIED as moot and the February 2, 2011 hearing on that motion is VACATED. (Duong, D)

-EFB (PS) Schneider v. Amador County et al

Doc. 15

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 vs. AMADOR COUNTY, et al., Defendants. _________________________________/ This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On December 6, 2010, plaintiff filed a complaint against Amador County, Linda Van Vleck (an Amador County code enforcement officer), and John Hahn (an Amador County counsel) alleging, among other things, violations of plaintiff's Fourteenth and Fifth Amendment rights to due process, civil conspiracy, negligence, and violations of 42 U.S.C. § 1983 and numerous state statutes. Dckt. No. 1. On December 27, 2010, defendants filed a motion to dismiss that complaint, Dckt. No. 9, and noticed the motion for hearing on February 2, 2011. However, also on December 27, 2010, plaintiff filed an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(1). Effective December 1, 2009, Rule 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CHRISTOPHER D. SCHNEIDER, Plaintiff, No. CIV S-10-3242 GEB EFB PS

ORDER

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service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier."1 Because plaintiff's amended complaint was filed within 21 days of the date he served his initial complaint (on December 6, 2010, see Dckt. No. 4) and within 21 days of the date defendants served their motion to dismiss pursuant to Rule 12(b), plaintiff was entitled to amend his complaint "as a matter of course." In light of plaintiff's amended complaint, defendants' motion to dismiss plaintiff's original complaint is denied as moot. The amended complaint supersedes the earlier complaint which defendants have moved to dismiss, rendering the earlier complaint of no legal effect and the motion to dismiss moot. See Ramirez v. Silgan Containers, 2007 WL 1241829, at *6 (Apr. 26, 2007). Accordingly, it is HEREBY ORDERED that: 1. Defendants' motion to dismiss, Dckt. No. 9, is denied as moot; and 2. The February 2, 2011 hearing on that motion is vacated. DATED: December 29, 2010

The former version of Rule 15(a)(1) provided that "[a] party may amend its pleading once as a matter of course: (A) before being served with a responsive pleading; or (B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar." 2

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