Doster v. Experian Information Solutions, Inc. et al

Filing 24

Order by Hon. Lucy H. Koh Denying 11 Motion to Dismiss as Moot.(lhklc2S, COURT STAFF) (Filed on 11/3/2016)

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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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SHANNON DOSTER,

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Plaintiff,
v.

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Case No. 16-CV-04629-LHK
ORDER DENYING MOTION TO
DISMISS AS MOOT
Re: Dkt. No. 11

EXPERIAN INFORMATION SOLUTIONS,
INC.,
Defendant.

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

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filed a motion to dismiss Plaintiff’s complaint. ECF No. 8. Plaintiff did not file an opposition to

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this motion to dismiss. Instead, on October 3, 2016, Plaintiff filed an Amended Complaint. ECF

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No. 19.

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

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

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

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

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An “amended complaint supersedes the original, the latter being treated thereafter as nonexistent.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.1997), overruled on other
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Case No. 16-CV-04629-LHK
ORDER DENYING MOTION TO DISMISS AS MOOT

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

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

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

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DENIES Experian’s motion to dismiss the original complaint as moot and vacates the hearing

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scheduled for December 8, 2016 at 1:30 p.m. The Initial Case Management Conference scheduled

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for the same day and time shall remain as set.

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Nevertheless, Plaintiff has now amended the complaint in light of the deficiencies

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

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the amended complaint based on these deficiencies, the Court will dismiss the amended complaint
with prejudice.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: November 3, 2016
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 16-CV-04629-LHK
ORDER DENYING MOTION TO DISMISS AS MOOT