Ubaldi v. SLM Corporation

Filing 26

ORDER VACATING HEARING ON MOTION TO DISMISS. Signed by Judge Laporte on 9/2/11. (edllc1, COURT STAFF) (Filed on 9/2/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TINA M UBALDI,
Plaintiff,

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United States District Court
For the Northern District of California

ORDER VACATING HEARING ON
MOTION TO DISMISS

v.

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No. C-11-01320 (EDL)

SLM CORPORATION,
Defendant.

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On May 27, 2011, Defendant filed a motion to dismiss set to be heard on September 20,

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2011. Instead of opposing the motion, on August 29, 2011 Plaintiff filed an Amended Complaint.

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Pursuant to Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a matter

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of course “21 days after service of a responsive pleading or 21 days after service of a motion under

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Rule 12(b), (e) or (f), whichever is earlier.” Other amendments require a stipulation or Order of

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Court. See Fed. R. Civ. P. 15(b).
Plaintiff’s Amended Complaint was not filed within 21 days of Defendant’s motion and

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Plaintiff did not file a stipulation relating to the amendment or obtain leave of Court to file the

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Amended Complaint. Therefore, the Amended Complaint is currently of no effect and the Motion to

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Dismiss the original Complaint is not moot at this time. If the parties stipulate to Plaintiff’s filing of

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the Amended Complaint, they must file a stipulation within three days of the date of this Order and

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Defendant should withdraw the pending Motion to Dismiss. Otherwise, Plaintiff must properly seek

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leave of Court to file the Amended Complaint within three days of the date of this Order. The

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hearing on Defendant’s Motion to Dismiss is VACATED pending resolution of which complaint is

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//

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the operative pleading.

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IT IS SO ORDERED.

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Dated: September 2, 2011
ELIZABETH D. LAPORTE
United States Magistrate Judge

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United States District Court
For the Northern District of California

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