Barnes v. Commissioner of Social Security Administration

Filing 85

ORDERED that Plaintiff's motion to amend/correct her complaint (ECF No. 80 ) is granted. The Clerk is directed to detach and file the proposed second amended complaint attached to Plaintiff's motion (ECF No. 80 -1). All pending motions (ECF Nos. 52 , 62 , 79 ) are denied as moot. Signed by Judge Miranda M. Du on 4/15/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PATRICIA G. BARNES,

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Case No. 3:18-cv-00199-MMD-WGC
Plaintiff,

ORDER

v.
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NANCY A. BERRYHILL, Acting
Commissioner Social Security
Administration,

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Defendant.
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Inter alia before the Court is Plaintiff’s unopposed motion for leave to file a second

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amended complaint and accompanying complaint (“Motion”). (ECF No. 80, 80-1; ECF No

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81 (Defendant’s response and non-opposition to Plaintiff’s Motion).) In the Motion, Plaintiff

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seeks to amend her complaint to omit claims and to make certain corrections. (ECF No.

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80; compare ECF No. 46 with ECF No. 80-1.) In light of Defendant’s non-opposition to

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Plaintiff’s Motion and other pertinent considerations, the Court grants the Motion. See,

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e.g., Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (citing

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Foman v. Davis, 371 U.S. 178, 182 (1962)) (explaining considerations for the courts in

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exercising discretion as to whether to grant a motion to amend); see also Fed. R. Civ. P.

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15(a)(2) (providing that once a responsive pleading has been filed, “a party may amend

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its pleading only with the opposing party’s written consent or the court’s leave”); LR 7-2(d)

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(“The failure of an opposing party to file points and authorities in response to any motion,

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except a motion under Fed. R. Civ. P. 56 or a motion for attorney’s fees, constitutes

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consent to the granting of the motion.”). Plaintiff’s second amended complaint (ECF No.

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80-1) is now the operative complaint. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474

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(9th Cir. 1997), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th

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Cir. 2012) (explaining an amended complaint supersedes the original).

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Because the Court grants Plaintiff’s Motion, all pending motions (ECF Nos. 52

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(motion to dismiss), 62 (motion to strike), 79 (Plaintiff’s first motion for partial summary

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judgment)) related to the prior complaint are denied as moot.

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It is therefore ordered that Plaintiff’s motion to amend/correct her complaint (ECF

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No. 80) is granted. The Clerk is directed to detach and file the proposed second amended

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complaint attached to Plaintiff’s motion (ECF No. 80-1).
It is further ordered that all pending motions (ECF Nos. 52, 62, 79) are denied as

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moot.
DATED THIS 15th day of April 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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