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)

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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, ยง 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-

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