DeVincenzi v. Experian Information Solutions, Inc. et al

Filing 25

Amended Order Denying Motions to Dismiss 8 17 as Moot, Denying as Moot 24 Motion for Leave to File, Vacating November 3, 2016 Order. (lhklc2, COURT STAFF) (Filed on 11/4/2016)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
SAN JOSE DIVISION

United States District Court
Northern District of California

11
12

DARYL DEVINCENZI,
Plaintiff,

13
v.

14

Case No. 16-CV-04628-LHK
ORDER DENYING MOTIONS TO
DISMISS AS MOOT (AMENDED)1
Re: Dkt. Nos. 8, 17, 24

15

EXPERIAN INFORMATION SOLUTIONS,
INC., et al.,

16

Defendants.

17
18

On September 13, 2016, Defendant Experian Information Solutions, Inc. (“Experian”)

19

filed a motion to dismiss Plaintiff’s complaint. ECF No. 8. On September 30, 2016, Defendant

20

Roundpoint Mortgage Company (“Roundpoint”) filed a motion to dismiss Plaintiff’s complaint.

21

ECF No. 17. Plaintiff did not file oppositions to these motions to dismiss. Instead, on October 3,

22

2016, Plaintiff filed an Amended Complaint. ECF No. 19.

23

Under Federal Rule of Civil Procedure (“Rule”) 15(a)(1)(B), if a pleading requires a

24

responsive pleading, a party may amend the original pleading once within “21 days after service of

25
26
27
28

1

This Order modifies and supersedes the Court’s November 3, 2016 Order [ECF No. 23]. The
November 3, 2016 Order is hereby vacated, and Plaintiff’s November 3, 2016 motion for leave to
file motion for reconsideration is denied as moot.
1
Case No. 16-CV-04628-LHK
ORDER DENYING MOTIONS TO DISMISS AS MOOT (AMENDED)

1

a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever

2

is earlier.” Therefore, Plaintiff’s amendment on October 3, 2016 was an amendment as of right.

3

An “amended complaint supersedes the original, the latter being treated thereafter as non-

4

existent.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.1997), overruled on other

5

grounds by Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012). For this reason, after an

6

amendment, “pending motions concerning the original complaint must be denied as moot.” Hylton

7

v. Anytime Towing, 2012 WL 1019829, at *5 (S.D. Cal. Mar. 26, 2012). Therefore, the Court

8

DENIES Experian’s and Roundpoint’s motions to dismiss the original complaint as moot and

9

vacates the hearing scheduled for December 1, 2016 at 1:30 p.m.
Nevertheless, Plaintiff has now amended the complaint in light of the deficiencies

11
United States District Court
Northern District of California

10

identified in Experian’s and Roundpoint’s motions to dismiss. Thus, if the Court grants any future

12

motion to dismiss the amended complaint based on these deficiencies, the Court will dismiss the

13

amended complaint with prejudice.

14

IT IS SO ORDERED.

15
16
17
18

Dated: November 4, 2016
______________________________________
LUCY H. KOH
United States District Judge

19
20
21
22
23
24
25
26
27
28

2
Case No. 16-CV-04628-LHK
ORDER DENYING MOTIONS TO DISMISS AS MOOT (AMENDED)