Childs, II v. Wynn Las Vegas, LLC

Filing 26

ORDER. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Plaintiff's 10 Motion to Amend the Complaint is Granted. The clerk is instructed to docket Plaintiff's amended complaint. IT IS FURTHER ORDERED THAT Defendant Wynn Las Vegas, LLC d/b/a Wynn Las Vegas' 4 Motion to Dismiss is Denied as moot, without prejudice. Signed by Judge James C. Mahan on 03/25/2016. (Copies have been distributed pursuant to the NEF - NEV)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DONALD RICHARD CHILDS II,

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Plaintiff(s),

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WYNN LAS VEGAS, LLC,
Defendant(s).

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ORDER

v.

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Case No. 2:15-CV-1342 JCM (GWF)

Presently before the court is Wynn Las Vegas, LLC d/b/a Wynn Las Vegas’ motion to
dismiss. (Doc. # 4). Pro se plaintiff filed a response (doc. # 9), and defendant filed a reply. (Doc.
# 12).
Also before the court is plaintiff’s motion to amend the complaint. (Doc. # 10). Defendant
filed a response (doc. # 13), and plaintiff filed a reply. (Doc. # 14).

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Plaintiff filed his motion to amend, which includes a proposed amended complaint, seven

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days after defendant filed its motion to dismiss. Under FRCP 15(a)(1)(B), plaintiff may amend his

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pleading once as a matter of course within twenty-one days after service of defendant’s motion

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under FRCP 12(b). Plaintiff did not, therefore, need to file a motion at all, but could have simply
docketed an amended complaint. Accordingly, the motion will be granted and the clerk is
instructed to docket the amended complaint accordingly.

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An amended complaint supersedes the original pleading, making it "non-existent."
Valadez-Lopez v. Chertoff, 656 F.3d 851,857 (9th Cir. 2011). If a litigant files an amended

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pleading, then motions to dismiss the original complaint are mooted without prejudice. Johnson v.

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Cheryl, 2013 WL 3943606, at *2 (D. Nev. 2013).

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will be denied as moot, without prejudice.

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James C. Mahan
U.S. District Judge

Accordingly, defendant’s motion to dismiss

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The court has previously stayed discovery in this matter pending resolution of the now

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moot motion to dismiss. (Doc. # 24). That stay shall remain in effect subject to further action by

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the court.

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Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff Donald Richard
Childs II’s motion to amend the complaint (doc. # 10) be, and the same hereby is, GRANTED,
consistent with the foregoing.
IT IS FURTHER ORDERED THAT defendant Wynn Las Vegas, LLC d/b/a Wynn Las

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Vegas’ motion to dismiss (doc. # 4) be, and the same hereby is, DENIED as moot, without

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prejudice.

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The clerk is instructed to docket plaintiff’s amended complaint (doc. # 10, 513)
accordingly.
DATED March 25, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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