Samuel et al v. CitiMortgage, Inc.

Filing 16

ORDER RE: AMENDED COMPLAINT. DENYING AS MOOT 5 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(B)(6) filed by CitiMortgage, Inc... Signed by Judge Maria-Elena James on 2/7/2013. (cdnS, COURT STAFF) (Filed on 2/7/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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ROBERT F. SAMUEL & PATRICIA A.
SAMUEL,

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Plaintiffs,
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v.

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ORDER DENYING AS MOOT
DEFENDANT’S MOTION TO
DISMISS

CITIMORTGAGE, INC., et al.,

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No. C 12-5871 MEJ

Defendants.
_____________________________________/

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Pending before the Court is Defendant’s Motion to Dismiss. Dkt. No. 5. However, on
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For the Northern District of California

UNITED STATES DISTRICT COURT

February 7, 2013, Plaintiff filed an Amended Complaint. Dkt. No. 11. Under Federal Rule of Civil
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Procedure 15, a party may amend its pleading once “as a matter of course” within “21 days after
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service of a responsive pleading or 21 days after service of a motion. Fed. R. Civ. P. 15(a)(1).
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Thus, as no prior amended complaints have been filed, Plaintiff was entitled to file an amended
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complaint as a matter of course under Rule 15(a). The amended complaint supersedes the original
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complaint, which is treated as non-existent. Since Defendant’s motion is based on Plaintiff’s
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original complaint, the Court hereby DENIES Defendant’s motion as moot. Defendant shall file an
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answer or other responsive pleading within 21 days from the date of this Order. The February 21,
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2013 order to show cause hearing is VACATED and the order to show cause DISCHARGED.
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Plaintiff is advised that no further amendments may be made without seeking leave of Court
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pursuant to Rule 15 and Civil Local Rule 7. Any attempt to file an amended complaint without
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proper notice to Defendant under Civil Local Rule 7 and a court order shall be stricken.
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IT IS SO ORDERED.
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Dated: February 7, 2013
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_______________________________
Maria-Elena James
United States Magistrate Judge