Ferrari et al v. Natural Partner, Inc. et al

Filing 34

Order by Judge Lucy Koh Denying as Moot 8 Motion to Dismiss; Denying as Moot 15 Motion to Dismiss. (lhklc2S, COURT STAFF) (Filed on 3/15/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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LISA FRANCESCA FERRARI, et al.,

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Plaintiffs,

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Case No. 15-CV-04787-LHK
ORDER DENYING AS MOOT
MOTIONS TO DISMISS

v.

Re: Dkt. Nos. 8, 15
NATURAL PARTNER, INC., et al.,
Defendants.

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On October 16, 2015, Plaintiffs filed the original complaint in this action, against

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Defendants Natural Partner, Inc.; ProThera, Inc.; Klaire Labs; and Soho Flordis International

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(collectively, “Defendants”). ECF No. 1. On February 5, 2016, Defendants ProThera, Inc.; Klaire

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Labs; and Soho Flordis International filed a motion to dismiss the original complaint, pursuant to

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Federal Rule of Civil Procedure 12(b)(6). ECF No. 8 at 1. On February 25, 2016, Defendant

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Natural Partner, Inc. filed a motion to dismiss the original complaint, pursuant to Federal Rules of

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Civil Procedure 12(b)(1), 12(b)(6), and 12(e). ECF No. 15 at 1.

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On February 25, 2016, Plaintiffs filed their First Amended Complaint (“FAC”). ECF No.

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24. Federal Rule of Civil Procedure 15(a)(1)(B) states that “[a] party may amend its pleading

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once as a matter of course within . . . 21 days after service of a motion under [Federal Rule of

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Case No. 15-CV-04787-LHK
ORDER DENYING AS MOOT MOTIONS TO DISMISS

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Civil Procedure] 12(b), (e), or (f).” Fed. R. Civ. P. 15(a)(1)(B). Because Plaintiffs filed the FAC

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on February 25, 2016, which is twenty days after Defendants Pro Thera, Inc.; Klaire Labs; and

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Soho Flordis International filed their motion to dismiss, Plaintiffs were allowed to file the FAC

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without leave of the Court.

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No Defendant has yet filed a responsive pleading or motion to the FAC. On March 14,

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2016, the parties stipulated to granting Plaintiffs’ leave to file a Second Amended Complaint

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(“SAC”). ECF No. 32. The Court granted this stipulation on March 15, 2016, with a deadline to

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file the SAC by April 15, 2016. ECF No. 33. Pursuant to the parties’ stipulation, Defendants

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must file a responsive motion or pleading to the SAC within 30 days after the SAC is filed.

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Because Plaintiffs have filed the FAC and will, by April 15, 2016, file a SAC, Defendants’

United States District Court
Northern District of California

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motions to dismiss the original complaint are moot. As the Ninth Circuit explained in Ramirez v.

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County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015), an “amended complaint

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supersedes the original, the latter being treated thereafter as non-existent.” Consequently, any

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motions to dismiss the prior, now “non-existent” complaint must be “deemed moot.” Id.; accord

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Gidding v. Anderson, 2008 WL 2168398, *5 (N.D. Cal. May 22, 2008). Defendants’ motions to

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dismiss are therefore DENIED AS MOOT, and the April 28, 2016 hearing date for Defendants’

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motion to dismiss is hereby VACATED. The initial case management conference, currently

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scheduled for April 28, 2016, at 1:30 p.m., remains as set. Although Defendants’ motions to

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dismiss are moot, the SAC must nonetheless cure the deficiencies identified therein, or the SAC

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may be dismissed with prejudice.

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IT IS SO ORDERED.

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Dated: March 15, 2016

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______________________________________
LUCY H. KOH
United States District Judge

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Case No. 15-CV-04787-LHK
ORDER DENYING AS MOOT MOTIONS TO DISMISS