Jimenez v. Homecomings Financial LLC

Filing 14

ORDER by Judge Maria-Elena James finding as moot 5 Motion to Dismiss; SECOND ORDER FOR PLAINTIFF TO FILE CONSENT/DECLINATION (mejlc1, COURT STAFF) (Filed on 3/5/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending before the Court is Defendant's Motion to Dismiss. (Dkt. #5.) However, on March 4, 2009, Plaintiff filed an Amended Complaint. (Dkt. #13.) Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once "as a matter of course" at any time before a responsive pleading is served. "A motion to dismiss is not a `responsive pleading' within the meaning of Rule 15." Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n. 3 (9th Cir. 2000). Thus, where a motion to dismiss is filed instead of an answer, Rule 15(a) allows a plaintiff to amend the original complaint once without obtaining permission from the court. An "amended complaint supersedes the original, the latter being treated thereafter as non-existent." Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.1997). Here, Defendant did not file an answer, but instead filed a motion to dismiss. As no prior amended complaints have been filed, Plaintiff was entitled to file an amended complaint as a matter vs. HOMECOMINGS FINANCIAL LLC, Defendant(s). / MARIA JIMENEZ, Plaintiff(s), IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 09-0146 MEJ ORDER DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS SECOND ORDER FOR PLAINTIFF TO FILE CONSENT/DECLINATION

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of course under Rule 15(a). The amended complaint supersedes the original complaint, and the original complaint is treated as non-existent. Since Defendant's motion is based on Plaintiff's original and now "non-existent" complaint, Defendants' motion is now moot. Accordingly, the Court hereby DENIES Defendant's motion as moot. Defendant shall file an answer or other responsive pleading within 30 days from the date of this Order. Further, the Court instructs Plaintiff that no further amendments to her complaint may be made without seeking leave of Court pursuant to Rule 15 and Civil Local Rule 7. Any attempt to file an amended complaint without proper notice to Defendant under Civil Local Rule 7 and a court order shall be stricken. Plaintiff is also reminded that she must file her consent/declination form, as previously ordered on February 10, 2009. (Dkt. #9.) Failure to file the consent/declination by March 19, 2009 shall result in the issuance of an order to show cause for failure to comply with this Court's orders. IT IS SO ORDERED.

Dated: March 5, 2009

MARIA-ELENA JAMES United States Magistrate Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Maria Jimenez 5176 Grass Valley Way Antioch, CA 94531 Dated: March 5, 2009 MARIA C. JIMENEZ, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-00146 MEJ CERTIFICATE OF SERVICE

HOMECOMINGS FINANCIAL et al, Defendant. /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 5, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Wieking, Clerk By: Brenda Tolbert, Deputy Clerk

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