Gastelum et al v. Kelly et al

Filing 11

ORDER Denying 8 Defendant's Motion to Dismiss As Moot. Signed by Judge Thomas J. Whelan on 7/6/2017. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALMA GASTELUM, et al.,

Case No.: 17-CV-0576 W (BLM)
Plaintiff,

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v.

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ORDER DENYING DEFENDANT’S
MOTION TO DISMISS AS MOOT
[DOC. 8]

JOHN F. KELLY, et al.,
Defendant.

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Pending before the Court is Defendant John F. Kelly’s Motion to Dismiss pursuant

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to Federal Rule of Civil Procedure 12(b)(1), filed on June 2, 2017. [Doc. 8.]

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On June 23, 2017, Plaintiffs filed a First Amended Complaint. [Doc. 10.] As this

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was Plaintiffs’ first amendment, filed within 21 days of service of the Motion to Dismiss,

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it was timely, and neither the opposing party’s written consent nor the Court’s leave was

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required. (Certificate of Service [Doc. 9].) See Fed. R. Civ. P. 15(a)(1)(b)–(a)(2).

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“[A]fter amendment the original pleading no longer performs any function and is treated

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thereafter as non-existent[.]” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), as

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amended (May 22, 1992) (internal quotation omitted).

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//

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17-CV-0576 W (BLM)

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Because the original Complaint no longer serves any function and is treated as
non-existent, Defendant Kelly’s Motion to Dismiss it is DENIED as moot.

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IT IS SO ORDERED.
Dated: July 6, 2017

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17-CV-0576 W (BLM)