McClain v. Pirotto et al

Filing 16

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/7/2015 ORDERING This action will proceed on plaintiff's 15 first amended complaint; Defendants' 13 Motion to Dismiss is DENIED as MOOT; and the 5/27/2015 hearing thereon is VACATED; Defendants shall file a response to plaintiff's amended complaint within the time prescribed in the Federal Rules of Civil Procedure. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNELLE McCLAIN,
Plaintiffs,

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No. 2:14-cv-1467-TLN-EFB PS

v.

ORDER

MICHAEL PIROTTO, COUNTY OF
SACRAMENTO, DOES 1-10,

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Defendants.
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On April 21, 2015, defendants moved to dismiss plaintiff’s complaint for failure to state a

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claim pursuant to Federal Rule of Civil (“Rule”) 12(b)(6). ECF No. 13. Defendants noticed the

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motion for hearing on May 27, 2015. Id. On April 29, 2015, plaintiff filed a first amended

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complaint.

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Rule 15 permits a party to amend its complaint once as a matter of course within 21 days

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after service of a motion under Rule 12(b). Fed. R. Civ. P. 15(a)(1)(B). Here, plaintiff was

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entitled to amend her complaint without leave of court because she filed her amended complaint

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on April 29, 2015, less than 21 days after defendants moved to dismiss. Thus, plaintiff’s first

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amended complaint supersedes the original complaint, which defendants move to dismiss. The

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amended complaint renders the original of no legal effect and the motion to dismiss as moot. See

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Ramirez v. Silgan Containers, 2007 WL 1241829, at *6 (Apr. 26, 2007).
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Accordingly, IT IS HEREBY ORDERED that:

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1. This action will proceed on plaintiff’s first amended complaint, ECF No. 15.

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2. Defendants’ motion to dismiss, ECF Nos. 13, is denied as moot and the May 27, 2015

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hearing thereon is vacated.
3. Defendants shall file a response to plaintiff’s amended complaint within the time

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prescribed in the Federal Rules of Civil Procedure.

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DATED: May 7, 2015.

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