Burton v. Wells Fargo Bank, NA

Filing 14

Order by Hon. Lucy H. Koh Denying as Moot 11 Motion to Dismiss.(lhklc2S, COURT STAFF) (Filed on 12/12/2016)

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

CAMEO BURTON,
Plaintiff,

13

ORDER DENYING MOTION TO
DISMISS AS MOOT

v.

14
15

Case No. 16-CV-06290-LHK

Re: Dkt. No. 11
WELLS FARGO BANK, NA,

16

Defendant.

17
On November 23, 2016, Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) filed a

18
19

motion to dismiss Plaintiff’s complaint. ECF No. 11. Plaintiff did not file an opposition to the

20

motion to dismiss. Instead, on December 9, 2016, Plaintiff filed an amended complaint. ECF No.

21

13.

22

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

23

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

24

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

25

earlier.” Therefore, Plaintiff’s December 9, 2016 amendment was an amendment as of right.

26
27
28

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
1
Case No. 16-CV-06290-LHK
ORDER DENYING MOTION TO DISMISS AS MOOT

1

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

2

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

3

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

4

DENIES Wells Fargo’s motion to dismiss as moot and vacates the hearing scheduled for February

5

9, 2017.

6

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

7

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

8

dismiss the amended complaint based on these same deficiencies, the Court will dismiss the

9

amended complaint with prejudice.

10

IT IS SO ORDERED.

United States District Court
Northern District of California

11
12

Dated: December 12, 2016
______________________________________
LUCY H. KOH
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2
Case No. 16-CV-06290-LHK
ORDER DENYING MOTION TO DISMISS AS MOOT