Sung v. Bussio et al

Filing 36

ORDER denying defendants' motion to dismiss as moot, rescheduling motion hearings, and requiring defendants to revise and re-file their second motion to dismiss. Signed by Judge Whyte on 8/29/2013. (rmwlc2, COURT STAFF) (Filed on 8/29/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

SAN JOSE DIVISION
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ARLEEN SUNG,

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Case No. C-13-01786-RMW
Plaintiff,

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v.

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ORDER DENYING DEFENDANTS'
MOTION TO DISMISS AS MOOT,
RESCHEDULING HEARING, AND
REQUIRING DEFENDANTS TO
REVISE THEIR SECOND MOTION
TO DISMISS

ANGELA BUSSIO, et al.,

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Defendants.

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[Re Docket Nos. 14, 30, 32]

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On April 19, 2013, plaintiff filed a complaint against defendants contending defendants'

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businesses were in violation of the Racketeer Influenced and Corrupt Organizations Act,

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California's Unfair Competition Law, and common law fraud and conversion. On July 5, 2013,

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defendants moved to dismiss. On July 26, 2013, plaintiff filed and served an amended complaint

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pursuant to Federal Rule 15(a)(1).

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Defendants urge the court to consider their original motion to dismiss applicable to the

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amended complaint. However, an "amended complaint supersedes the original, the latter being

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treated thereafter as non-existent." Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011)

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(quoting Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 2007)). The serving of an

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amended complaint moots a motion to dismiss directed to the original complaint. See Bender v. LG
ORDER
Case No. C-13-01786-RMW
SW

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Electronics U.S.A., Inc., No. C 09-02114 JF PVT, 2009 WL 4730900 (N.D. Cal. Dec. 7, 2009).

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Because plaintiff served the amended complaint after defendants filed their motion to dismiss the

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original complaint, defendants' first motion to dismiss is moot.

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Furthermore, to the extent that defendants urge that its original motion to dismiss "should be

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considered directed to the Amended Complaint," the court notes that the paragraph numbering

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appears to be different between the two complaints, 1 and thus following defendants' arguments

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based upon citations to the original complaint will be difficult and unnecessarily time consuming.

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Presumably, the content of the complaint has changed as well and considering arguments that do not

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address all of the allegations wastes the court's time.

United States District Court
For the Northern District of California

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ORDER

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For the foregoing reasons, the court finds defendants' first motion to dismiss, Dkt. No. 14,

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moot. The court similarly finds defendants' motion to strike, Dkt. No. 30, moot to the extent it is

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directed towards plaintiff's filings in opposition to the original motion to dismiss. Accordingly, the

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court vacates the August 30, 2013 hearing on the motion to dismiss and the motion to strike. The

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hearing on defendants' motion to dismiss and the still relevant portions of the motion to strike are

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rescheduled to September 27, 2013.
Furthermore, because there is an amended complaint, defendants' motion to dismiss should

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cite to it and not merely refer the court back to the original 48 page motion to dismiss, which

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contains citations to a now legally meaningless document. Therefore, the court also vacates

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defendants' second motion to dismiss, Dkt. No. 32, and orders defendants to re-file a new version of

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the motion by September 5, 2013, in compliance with the local rules, including the page limitations,

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and with citations to the operative complaint. Plaintiff's opposition is due by September 16, 2013,

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and any reply is due by September 20, 2013.

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Dated: August 29, 2013

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_________________________________
Ronald M. Whyte
United States District Judge

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Plaintiffs still have not filed a copy of the original complaint as ordered.
ORDER
Case No. C-13-01786-RMW
-2SW