Quesada v. NDEX West, LLC et al

Filing 10

ORDER BY JUDGE JEREMY FOGEL VACATING 5 MOTION TO DISMISS AS MOOT. (jflc2, COURT STAFF) (Filed on 2/6/2009)

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C a s e No. C 08-5668 JF (HRL) O R D E R VACATING MOTION TO DISMISS AS MOOT ( JF L C 2 )

**E-Filed 2/6/09**

NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

DAISY QUESADA, Plaintiff, v.

Case Number C 08-5668 JF (HRL) ORDER VACATING MOTION TO DISMISS AS MOOT [re: doc. no. 5]

NDEX WEST, LLC, et al., Defendants.

Plaintiff filed the complaint in the instant action on October 29, 2008 in the Santa Clara Superior Court. Defendants removed the action on December 18, 2008, and filed a motion to dismiss on December 29, 2008. Plaintiff filed an amended complaint on January 30, 2009. Pursuant to Federal Rule of Civil Procedure 15(a), "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." A motion to dismiss does not constitute a responsive pleading within the meaning of Rule 15(a); Plaintiff thus does not need leave of court to file an amended complaint. See Crum v. Circus Circus Enterprises, 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). Accordingly, the pending motion to dismiss will be vacated as moot.

1 2 3 4 DATED: 2/6/09 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER Defendants' motion to dismiss filed December 29, 2008 is VACATED AS MOOT.

__________________________________ JEREMY FOGEL United States District Judge

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This Order was served on the following persons:

John M. Sorich [e-mail] Reuben Lagbao Nocos [e-mail] Sung-Min Christopher Yoo [e-mail], [e-mail]

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C a s e No. C 08-5668 JF (HRL) O R D E R VACATING MOTION TO DISMISS AS MOOT ( JF L C 2 )