Raifman et al v. Wachovia Securities, LLC et al

Filing 146

ORDER by Judge ARMSTRONG denying as moot 139 Motion to Strike ; denying as moot 141 Motion to Dismiss; terminating 144 Motion to Amend/Correct ; ; terminating 145 Stipulation (lrc, COURT STAFF) (Filed on 4/29/2013)

1
2

UNITED STATES DISTRICT COURT
3

FOR THE NORTHERN DISTRICT OF CALIFORNIA
4

OAKLAND DIVISION
5
6

GREGORY R. RAIFMAN and SUSAN

Case No: C 11-02885 SBA

7 RAIFMAN, husband and wife, individually

and on behalf of their marital community and

ORDER

8 as Trustees of the RAIFMAN FAMILY

REVOCABLE INTERVIVOS TRUST and as

Docket 139, 141, 144, 145

9 beneficiaries of the PALLADIAN TRUST;

GEKKO HOLDINGS, LLC, and HELICON
10 INVESTMENTS, LTD.,

Plaintiffs,

11
12

vs.

13 WACHOVIA SECURITIES, LLC, N/K/A

WELLS FARGO ADVISORS, LLC,
14

Defendant.
15
16

The parties are presently before the Court on Plaintiffs' Unopposed Motion to File

17

Amendment to Second Amended Complaint by Interlineation under Rule 15 of the Federal

18

Rules of Civil Procedure. Dkt. 144. Plaintiffs offer no authority in support of amending

19

the second amended complaint by interlineation. Rule 15 permits a party to amend or

20

supplement a pleading. See Fed.R.Civ.P. 15. "Amended pleadings relate to matters that

21

occurred prior to the filing of the original pleading and entirely replace the earlier pleading.

22

Supplemental pleadings deal with events subsequent to the pleading to be altered and

23

represent additions to or continuations of the earlier pleadings." Brook v. Sing, 2012 WL

24

78417, at *1 n. 1 (E.D. Cal. 2012) (citing Wright, Miller & Kane, Federal Practice &

25

Procedure, Chp. 4, § 1504 (3d ed.) (2011)); Frederick v. California Dept. of Corrections

26

and Rehabilitation, 2012 WL 2077305, at *1 (N.D. Cal. 2012).

27
28

In the instant motion, Plaintiffs do not seek to supplement their pleading by adding
facts relating to events taking place after the filing of the second amended complaint.

1

Instead, they seek to file an amended complaint under Rule 15(a)(2). As such, the Court

2

construes Plaintiffs' motion as a motion to file a third amended complaint. Under Rule 15

3

(a)(2), "a party may amend its pleading only with the opposing party's written consent or

4

the Court's leave. The court should freely give leave when justice so requires."

5

Fed.R.Civ.P. 15(a)(2). "This policy is to be applied with extreme liberality." Eminence

6

Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Here, because

7

Plaintiffs have obtained Defendant's written consent to amend the second amended

8

complaint, the Court GRANTS Plaintiffs' motion. Plaintiffs shall file a third amended

9

complaint no later than seven (7) days from the date this Order is filed. Because an

10

amended complaint supersedes the previously filed complaint in its entirety, see Forsyth v.

11

Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds,

12

Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc), Defendant's motion to

13

strike the second amended complaint, Dkt. 139, and motion to dismiss the second amended

14

complaint, Dkt. 141, are DENIED as MOOT. This Order terminates Docket 139, Docket

15

141, Docket 144, and Docket 145.

16
17

IT IS SO ORDERED.
Dated: 4/29/13

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

18
19
20
21
22
23
24
25
26
27
28
-2-