Daley v. Lockheed Martin Corporation

Filing 24

Order by Hon. Lucy H. Koh Denying 13 Motion to Dismiss as Moot.(lhklc2S, COURT STAFF) (Filed on 2/7/2017)

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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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SHIRLEY DALEY,
Plaintiff,

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v.

Case No. 16-cv-07107-LHK
ORDER DENYING MOTION TO
DISMISS AS MOOT
Re: Dkt. No. 13

LOCKHEED MARTIN CORPORATION, et
al.,
Defendants.

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On December 20, 2016, Defendant Lockheed Martin Corporation (“Lockheed”) filed a

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motion to dismiss Plaintiff’s complaint. ECF No. 13. Plaintiff filed an opposition to the motion to

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dismiss on January 3, 2017. ECF No. 14. In the opposition, Plaintiff did not contest that her

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original complaint was deficient. Instead, the opposition stated that “Ms. Daley’s response [to the

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motion to dismiss] is that the deficits cite[d] in Lockheed’s motion may be cured by amendment.”

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Id. at 2. Therefore, Plaintiff requested that the Court not dismiss the complaint with prejudice, but

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instead “order Ms. Daley to file a first amended complaint by a date certain.” Id. Lockheed replied

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on January 10, 2017. ECF No. 15. On January 10, 2017, Plaintiff filed an Amended Complaint.

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ECF No. 16.

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Under Federal Rule of Civil Procedure (“Rule”) 15(a)(1)(B), if a pleading requires a
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Case No. 16-cv-07107-LHK
ORDER DENYING MOTION TO DISMISS AS MOOT

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

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

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earlier.” Therefore, Plaintiff’s amendment on January 10, 2017 was timely because it was filed 21

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days after Lockheed’s motion to dismiss.

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

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

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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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United States District Court
Northern District of California

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DENIES Lockheed’s motion to dismiss as moot.
Plaintiff has now amended the complaint once in light of the deficiencies identified in

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Lockheed’s motion to dismiss. Indeed, in the opposition to the motion to dismiss, Plaintiff

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recognized that her complaint was deficient and requested to amend her complaint to cure these

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deficiencies. ECF No. 14, at 2. Thus, if the Court grants any future motion to dismiss the amended

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

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prejudice.

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IT IS SO ORDERED.

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Dated: February 7, 2017
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 16-cv-07107-LHK
ORDER DENYING MOTION TO DISMISS AS MOOT