Lepiane v. FNP, Inc. et al

Filing 25

ORDER denying as moot 2 Motion to Dismiss; finding as moot 17 Findings and Recommendations. Signed by Judge Dana L. Christensen on 2/17/2021. (ASG)

Case 9:20-cv-00163-DLC-KLD Document 25 Filed 02/17/21 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DANIEL LEPIANE, individually and
on behalf of similarly situated JOHN
DOES 1-100,

CV 20–163–M–DLC

Plaintiffs,

ORDER

vs.
FNP, INC., d/b/a FIRST NATIONAL
PAWN; FNP of MONTANA, INC.,
d/b/a FIRST NATIONAL PAWN;
FNP of MISSOULA, INC., d/b/a
FIRST NATIONAL PAWN; FNPS,
LLC; FIRST NATIONAL
PROPERTIES, LLC, and DOES 1-5,
Defendants.
Before the Court is United States Magistrate Judge Kathleen L. DeSoto’s
Findings & Recommendation. (Doc. 17.) Judge DeSoto recommends that the
Court grant Defendants’ motion to dismiss (Doc. 2) as to Count I of Plaintiffs’
complaint, with leave to amend. (Doc. 17 at 14–15.) Importantly, following
issuance of Judge DeSoto’s Findings & Recommendation (Doc. 17), Plaintiffs
filed an amended complaint. (Doc. 19.)
The amended complaint supersedes Plaintiffs’ original complaint and moots
Defendants’ motion to dismiss to the extent it attacked the original complaint.
Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015).
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Case 9:20-cv-00163-DLC-KLD Document 25 Filed 02/17/21 Page 2 of 2

Authority exists for the proposition that this Court may nonetheless treat
Defendants’ motion to dismiss as targeting the amended complaint. Pettaway v.
Nat’l Recovery Sols., LLC, 955 F.3d 299, 303–04 (2d Cir. 2020); see also Williams
v. Southern Or. Credit Serv., Inc., 2016 WL 8261902, *1–2 (D. Or. 2016). Given
the posture of this case, however, the Court declines to take this approach.
Defendants are free to file another motion should they elect to do so.
Accordingly, IT IS ORDERED that the Court declines to adopt Judge
DeSoto’s Findings & Recommendation (Doc. 17) on the grounds that it is moot.
IT IS FURTHER ORDERED that Defendants’ motion (Doc. 2) is DENIED
as moot.
DATED this 17th day of February, 2021.

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