Fitness Anywhere LLC v. Woss Enterprises LLC

Filing 27

Order Striking 25 Amended Counterclaim, With Directions to Defendant; Terminating 20 Motion to Dismiss. Defendant shall file Answer and Amended Counterclaim within seven (7) days of the date of this order. Plaintiff shall have until 8/22/2014 to respond to Defendant's Amended Counterclaim. Signed by Hon. Beth Labson Freeman on 8/4/2014. (blflc2, COURT STAFF) (Filed on 8/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FITNESS ANYWHERE LLC,

Case No. 14-cv-01725-BLF

Plaintiff,
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v.
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WOSS ENTERPRISES LLC,
Defendant.

[Re: ECF 20, 25]

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United States District Court
Northern District of California

ORDER STRIKING AMENDED
COUNTERCLAIM WITH DIRECTIONS
TO DEFENDANT; TERMINATING
MOTION TO DISMISS

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On July 28, 2014, Defendant filed a First Amended Counterclaim pursuant to Federal Rule

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of Civil Procedure 15(a)(1)(B). (ECF 25) The initial counterclaim was incorporated in

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Defendant’s Answer. (ECF 16). The First Amended Counterclaim was improperly filed as a

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separate document that does not include Defendant’s Answer. Fed. R. Civ. P. 7, 13; see also Civil

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Local Rule 10-1 (“Any party filing . . . an amended pleading must reproduce the entire proposed

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pleading and may not incorporate any part of a prior pleading by reference.”). Accordingly, the

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Court STRIKES Defendant’s First Amended Counterclaim. IT IS HEREBY ORDERED that

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Defendant shall file an Answer and Amended Counterclaim that complies with the applicable

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federal and local rules no later than seven (7) days from the date of this order. Defendant shall

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make no other changes to its pleadings.

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The Federal Rules permit a party to amend its pleading “once as a matter of course” within

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“21 days after service of a motion under Rule 12(b).” Fed. R. Civ. P. 15(a)(1)(B). An amended

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pleading supersedes the original. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967); see also

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Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008). Because Defendant’s Answer and

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Amended Counterclaim, once filed, will stand as the operative pleading, Plaintiff’s motion to

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dismiss the original counterclaim, filed July 15, 2014, (ECF 20), is hereby terminated as moot.

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Plaintiff shall have until August 22, 2014 to respond to Defendant’s Amended Counterclaim.
IT IS SO ORDERED.
Dated: August 4, 2014
______________________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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