W. James Construction, Inc. v. MJ Diesel Engine Specialist, LLC et al

Filing 14

ORDER Denying As Moot Defendant's 9 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Marilyn L. Huff on 12/5/2016. (dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16-cv-02277-H-JMA

W. JAMES CONSTRUCTION, INC., a
California corporation; and PRO TOOL &
EQUIPMENT, INC.,
Plaintiffs,

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v.

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ORDER DENYING AS MOOT
DEFENDANT’S MOTION TO
DISMISS COMPLAINT

MJ DIESEL ENGINE SPECIALIST,
LLC, a Washington limited liability
company; and DOES 1 through 100,
inclusive

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[Doc. No. 9.]

Defendants.

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On September 9, 2016, Plaintiff W. James Construction, Inc. filed a complaint
against Defendant MJ Diesel Engine Specialist, LLC, alleging causes of action for
negligence and breach of contract. (Doc. No. 1.) On November 18, 2016, Defendant filed
a motion to dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure
12(b)(6), or in the alternative, to transfer venue pursuant to 28 U.S.C. § 1404(a). (Doc.
No. 9.)
In an effort to address the issues raised in Defendant’s motion to dismiss, on
December 5, 2016, Plaintiff filed a first amended complaint pursuant to Federal Rule of

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16-cv-02277-H-JMA

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Civil Procedure 15(a)(1), adding Pro Tool & Equipment, Inc. as an additional Plaintiff in

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the action. (Doc. No. 12.) On December 5, 2016, Plaintiffs also filed a response in

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opposition to Defendant’s motion where Plaintiffs argue that the first amended complaint

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cures the claimed defects identified by Defendant in its motion to dismiss. (Doc. No. 13.)

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Accordingly, in light of Plaintiff’s amended pleading, the Court denies as moot

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Defendant’s motion to dismiss the original complaint, or in the alternative, to transfer

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venue without prejudice to Defendant renewing the motion based on the allegations in the

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first amended complaint. See Fleming v. Coverstone, No. 08CV355 WQH(NLS), 2008

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WL 4628397, at *2 (S.D. Cal. Oct. 17, 2008) (“[The amended pleading] contains

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significant additions and changes to the factual allegations in the [prior pleading]. In light

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of the significant changes in the [amended pleading], the Court denies the Motion to Strike

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and Motion to Dismiss the [prior pleading] as moot.”); Salat v. Pirotto, No. 2:14-CV-

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01468-MCE-AC, 2014 WL 6435509, at *1 (E.D. Cal. Nov. 14, 2014) (“The court finds

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that defendants’ motion to dismiss is moot, as plaintiff’s initial complaint has been

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superseded by his first amended complaint.”); see also Forsyth v. Humana, Inc., 114 F.3d

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1467, 1474 (9th Cir. 1997) (An “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”).

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IT IS SO ORDERED.
DATED: December 5, 2016
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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16-cv-02277-H-JMA