Kaminskiy v. Kimberlite Corporation, et al

Filing 12

ORDER FINDING AS MOOT MOTION TO DISMISS. Signed by Judge Maria-Elena James on February 19, 2014. (mejlc3, COURT STAFF) (Filed on 2/19/2014)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 TATYANA KAMINSKY, Case No. 14-cv-00418-MEJ Plaintiff, 5 ORDER FINDING AS MOOT MOTION TO DISMISS v. 6 7 Re: Dkt. Nos. 5, 11 KIMBERLITE CORPORATION, et al., Defendants. 8 9 10 Pending before the Court is Defendant’s Motion to Dismiss. Dkt. No. 5. However, on United States District Court Northern District of California 11 February 18, 2014, Plaintiff filed an Amended Complaint. Dkt. No. 11. Under Federal Rule of 12 Civil Procedure 15, a party may amend its pleading once “as a matter of course” within “21 days 13 after service of a motion under Rule 12(b), (e), or (f).” Fed. R. Civ. P. 15(a)(1)(B). Thus, as no 14 prior amended complaints have been filed, Plaintiff was entitled to file an amended complaint as a 15 matter of course under Rule 15(a). Once properly served, the amended complaint supersedes the 16 original complaint, which is treated as non-existent. Since Defendant’s motion is based on 17 Plaintiff’s original complaint, the Court hereby DENIES Defendant’s motion as moot. Defendant 18 shall file an answer or other responsive pleading within 21 days from the date of this Order. 19 20 21 Plaintiff is advised that no further amendments may be made without seeking leave of Court pursuant to Rule 15 and Civil Local Rule 7. IT IS SO ORDERED. 22 23 24 25 26 27 28 Dated: February 19, 2014 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge

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