Craig Ogans v. United Parcel Service, Inc. et al

Filing 16

ORDER DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS; VACATING HEARING. Signed by Judge Maxine M. Chesney on 05/23/17. (mmclc2, COURT STAFF) (Filed on 5/23/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CRAIG OGANS,
Plaintiff,

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v.

ORDER DENYING AS MOOT
DEFENDANTS’ MOTION TO DISMISS;
VACATING HEARING

UNITED PARCEL SERVICE, INC.,
Defendant.

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United States District Court
Northern District of California

Case No. 17-cv-02443-MMC

Re: Dkt. Nos. 13, 15

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Before the Court is defendant’s “Motion to Dismiss Plaintiff’s Complaint,” filed May

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5, 2017. On May 19, 2017, plaintiff filed a “First Amended Class and Collective Action

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Complaint” (“FAC”).

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A party may amend a 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 under Rule 12(b),

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(e), or (f), whichever is earlier.” See Fed. R. Civ. P. 15(a). “[A]n amended pleading

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supersedes the original, the latter being treated thereafter as non-existent.” Bullen v. De

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Bretteville, 239 F.2d 824, 833 (9th Cir. 1956), cert. denied, 353 U.S. 947 (1957).

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In the instant case, plaintiff filed his FAC within 21 days after service of

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defendant’s motion to dismiss, and, consequently, was entitled to amend. See Fed. R.

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Civ. P. 15(a).

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Accordingly, the Court hereby DENIES as moot defendant’s motion, and
VACATES the June 16, 2017 hearing scheduled thereon.
IT IS SO ORDERED.
Dated: May 23, 2017
MAXINE M. CHESNEY
United States District Judge