Mendenhall et al v. JP Morgan Chase Bank, National Association et al

Filing 34

ORDER DENYING AS MOOT DEFENDANT WCS LENDING, LLC'S MOTION TO DISMISS; VACATING HEARING. Signed by Judge Maxine M. Chesney on March 3, 2011. (mmclc1, COURT STAFF) (Filed on 3/3/2011)

Mendenhall et al v. JP Morgan Chase Bank, National Association et al

Doc. 34

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ELAINE MENDENHALL, et al., Plaintiffs, v. JP MORGAN CHASE BANK, et al., Defendants /

No. C 10-5302 MMC ORDER DENYING AS MOOT DEFENDANT WCS LENDING, LLC'S MOTION TO DISMISS; VACATING HEARING

United States District Court

Before the Court is the Motion to Dismiss, filed and served February 16, 2011 by defendant WCS Lending, LLC, erroneously sued as WCS Lending, Inc. ("WCS"), by which WCS seeks dismissal of plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On March 1, 2011, plaintiffs filed a First Amended Complaint ("FAC"). A party may amend a pleading "once as a matter of course within . . . 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." See Fed. R. Civ. P. 15(a). "[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). Here, plaintiffs filed the FAC within 21 days of the date on which they were served with WCS's motion to dismiss, and, consequently, were entitled to amend as of right.1 See No defendant other than WCS has appeared.

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Fed. R. Civ. P. 15(a). Accordingly, the Court hereby DENIES as moot WCS's motion to dismiss, and VACATES the March 25, 2011 hearing scheduled thereon. IT IS SO ORDERED.

Dated: March 3, 2011 MAXINE M. CHESNEY United States District Judge

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