Sharma v. City of Redding

Filing 30

ORDER signed by Magistrate Judge Allison Claire on 5/26/2017 ORDERING that defendant's 24 Motion to Dismiss is VACATED. Defendant's 25 Motion to Strike is VACATED. The court's 6/7/2017 hearing is VACATED. Plaintiff's 29 Motion to Continue the Hearing is DENIED. Defendant is directed to file a responsive pleading or 12(b) motion within twenty-one (21) days of this order. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NARENDRA SHARMA, assignee of
Shree Shiva LLC.,
Plaintiff,

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ORDER
v.

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No. 2:17-cv-0487 MCE AC PS

CITY OF REDDING, a municipal
corporation,

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Defendant.

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Plaintiff is proceeding in this action pro se. This proceeding was referred to this court by

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Local Rule 302(c)(21). Before the court are defendant’s amended motion to dismiss plaintiff’s

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initial complaint (ECF No. 24) and defendant’s amended motion to strike portions of plaintiff’s

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initial complaint (ECF No. 25). For the reasons discussed below, the court vacates defendant’s

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amended motion to dismiss and amended motion to strike as moot.
I. PROCEDURAL BACKGROUND

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On March 6, 2017, plaintiff filled an initial complaint against defendant. ECF No. 1. On

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April 20, 2017, defendant filed a motion to dismiss (ECF No. 15) and motion to strike (ECF No.

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14) that was incorrectly noticed before District Judge Morrison C. England Jr. pursuant to Local

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Rule 230(a). On April 27, 2017, defendant re-noticed its amended motion to dismiss and

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amended motion to strike before the undersigned. See ECF Nos. 24, 25. On May 17, 2017,

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plaintiff filed her first amended complaint. ECF No. 27.

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II. LEGAL STANDARD

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Federal Rule of Civil Procedure 15 governs amended pleadings. In pertinent part, Rule

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15(a) reads: “A party may amend its pleading once as a matter of course within ..., if the pleading

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is one to which a response pleading is required, 21 days after service of the responsive pleading

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or 21 days after service of a motion under Rule 12(b)…or (f), whichever is earlier.” Fed. R. Civ.

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P. 15(a)(1)(B). A properly filed “amended complaint supersedes the original [complaint], the

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latter being treated thereafter as non-existent.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474

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(9th Cir.1997); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967).

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III. ANALYSIS

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The court finds that defendant’s amended motion to dismiss and amended motion to strike

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are moot, as plaintiff’s initial complaint has been superseded by her first amended complaint.

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Defendant filed his amended motion to dismiss and amended motion to strike plaintiff's initial

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complaint on April 27, 2017. ECF Nos. 24, 25. Plaintiff filed his first amended complaint on

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May 17, 2017, ECF No. 27, well within the twenty-one (21) day period allowed after service of a

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motion under Rule 12(b) and 12(f). Fed. R. Civ. P. 15(a). Accordingly, plaintiff's initial

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complaint has been superseded by his first amended complaint and the court will vacate

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defendant’s amended motion to dismiss and amended motion to strike, without prejudice to a

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motion addressed to the amended complaint.

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In light of this order, the court will vacate the hearing scheduled for June 7, 2017, and
deny plaintiff’s motion to continue the hearing, ECF No. 29, as moot.

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Accordingly, IT IS HEREBY ORDERED that

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1. Defendant’s amended motion to dismiss, ECF No. 24, is vacated;

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2. Defendant’s amended motion to strike, ECF No. 25, is vacated;

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3. The court’s June 7, 2017, hearing is vacated;

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4. Plaintiff’s motion to continue the hearing, ECF No. 29, is denied; and

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5. Defendant is directed to file a responsive pleading or 12(b) motion within twenty-one (21)
days of this order.
DATED: May 26, 2017

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