Thaut et al v. Hsieh, et al

Filing 44

ORDER signed by Magistrate Judge Kendall J. Newman on 9/28/15: 40 Motion to Dismiss is DENIED as moot. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KATHRYN THAUT, et al.,

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No. 2:15-cv-0590-JAM-KJN PS

Plaintiffs,

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ORDER

v.
K. HSIEH, et al.,

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Defendants.

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On August 21, 2015, defendant Michael Bunuan filed a motion to dismiss plaintiffs’

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claims against him in their original complaint pursuant to Federal Rule of Civil Procedure

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12(b)(6). (ECF No. 40.) Plaintiffs filed an opposition, and defendant Bunuan filed a reply. (ECF

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Nos. 41, 42.) However, on September 23, 2015, plaintiffs filed a first amended complaint with

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respect to all defendants remaining in this action, including defendant Bunuan, (ECF No. 43), in

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response to the court’s July 24, 2015 order, which directed plaintiffs to make such a filing within

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60 days of that date (ECF No. 32).
Accordingly, IT IS HEREBY ORDERED that defendant Bunuan’s motion to dismiss the

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original complaint (ECF No. 40) is DENIED as moot.1

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In his reply to plaintiffs’ opposition, defendant Bunuan argues that the court should still
consider and decide his motion to dismiss even in light of plaintiffs’ first amended complaint
because plaintiffs have run out of time to file an amended complaint as a matter of course
pursuant to Federal Rules of Civil Procedure 15(a)(1). While it is true that plaintiffs may no
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IT IS SO ORDERED.
Dated: September 28, 2015

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longer amend their complaint as a matter of course, their first amended complaint was filed in
response to a court order granting them leave to do so. See Fed. R. Civ. P. 15(a)(2).
Accordingly, defendant Bunuan’s argument that the court should disregard plaintiffs’ first
amended complaint and proceed to rule on his motion to dismiss is without merit.
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