Forsythe et al v. Mukasey et al

Filing 31

ORDER DENYING AS MOOT FEDERAL DEFENDANTS' MOTION TO DISMISS INITIAL COMPLAINT; DENYING AS MOOT STIPULATION TO MODIFY BRIEFING SCHEDULE AND CONTINUE HEARING. Signed by Judge Maxine M. Chesney on March 19, 2009. (mmclc1, COURT STAFF) (Filed on 3/19/2009)

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1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A motion to dismiss is not a "responsive pleading." See Crum v. Circus Circus Enterprises, 231 F. 3d 1129, 1130 n. 3 (9th Cir. 2000). 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JAMES W. FORSYTHE, M.D., et al., Plaintiffs, v. ERIC HOLDER, et al., Defendants / No. C-08-5160 MMC ORDER DENYING AS MOOT FEDERAL DEFENDANTS' MOTION TO DISMISS INITIAL COMPLAINT; DENYING AS MOOT STIPULATION TO MODIFY BRIEFING SCHEDULE AND CONTINUE HEARING United States District Court On February 26, 2009, defendants Eric Holder, Charles E. Johnson, Frank Torti, Robert Perlstein, M.D., and John Zelinski (collectively, "Federal Defendants") filed a motion to dismiss the initial complaint filed by plaintiffs James W. Forsythe, M.D., and Earlene Forsythe (collectively, "the Forsythes"). On March 6, 2009, the Forsythes filed a First Amended Complaint. A party may amend a pleading "once as a matter of course at any time before a responsive pleading is served." See Fed. R. Civ. P. 15(a).1 "[A]n amended pleading supersedes the original, the latter being treated thereafter as non-existent." Bullen v. De Bretteville, 239 F. 2d 824, 833 (9th Cir. 1956), cert. denied, 353 U.S. 947 (1957). Accordingly, the Court hereby DENIES as moot the Federal Defendants' motion to 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 27 28 dismiss the initial complaint, and the hearing scheduled for April 3, 2009 is hereby VACATED. In light of the new complaint, the parties' stipulation, by which the parties seek to modify the briefing schedule on the Federal Defendants' motion to dismiss the initial complaint and to continue the April 3, 2009 hearing on said motion, is hereby DENIED as moot. IT IS SO ORDERED. Dated: March 19, 2009 MAXINE M. CHESNEY United States District Judge 2

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