Fuqua v. Associated Credit Service Inc et al

Filing 19

ORDER Denying 12 Defendants' Motion to Dismiss and 13 Motion to Strike. Signed by Judge Salvador Mendoza, Jr. (PL, Case Administrator)

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1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Jan 18, 2018 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 SEAN F. MCAVOY, CLERK 4 5 JESSICA FUQUA and all others similarly situated, Plaintiff, 6 v. 7 8 9 No. 17-CV-00324-SMJ ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND MOTION TO STRIKE ASSOCIATED CREDIT SERVICE, INC., a Washington corporation, PAUL K. WASSON AND JANE DOE WASSON, husband and wife, 10 Defendants. 11 12 Before the Court, without oral argument, are Defendants’ Motion to Dismiss 13 Complaint Without Prejudice Pursuant to FRCP 4, ECF No. 12, and Motion to 14 Strike Amended Complaint Pursuant to FRCP 15, ECF No. 13. Defendants argue 15 that Plaintiff erred by serving only the amended complaint and not effecting service 16 of the original complaint. However, because Plaintiff amended and served her 17 complaint within the time-frame permitted under Federal Rules of Civil Procedure 18 4 and 15, Defendants have not articulated a valid basis to dismiss the claims. 19 Federal Rule of Civil Procedure 4(m) governs the time limit for service of 20 the original complaint: “If a defendant is not served within 90 days after the ORDER - 1 1 complaint is filed, the court—on motion or on its own after notice to the plaintiff— 2 must dismiss the action without prejudice against that defendant or order that 3 service be made within a specified time.” Here, Plaintiff served the complaint 4 within the 90-day window provided under Rule 4(m). Plaintiff filed the original 5 complaint on September 15, 2017. The 90-day statutory deadline was December 6 16, 2017. On December 13, 2017, Plaintiff filed an Amended Complaint with the 7 Court. On December 14, 2017, Plaintiff filed a motion to extend the time for service 8 of the complaint. On December 15, 2017, Plaintiff served the amended complaint 9 on Defendants. 10 Defendants argue that Plaintiff improperly effected service by serving only 11 the amended complaint. This argument appears to stem from a misunderstanding of 12 which document operates as the complaint. An amended complaint becomes the 13 operative pleading and renders the original complaint without legal effect. See 14 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Accordingly, “where an 15 amended pleading supersedes the original complaint, ‘subsequent service of the 16 superseded prior or original pleading is improper.’” Giles v. United States, 906 F.2d 17 1386 (10th Cir. 1990) (quoting 3 Moore’s Federal Practice, ¶ 15.08 [7] (Supp. 18 1960)). Because Plaintiff amended the complaint before it was served, service of 19 only the amended complaint was proper. 20 ORDER - 2 1 Defendants also argue that Plaintiff erred by amending the complaint without 2 leave of Court. This argument is similarly unfounded. Rule 15 provides that a 3 plaintiff may amend as a matter of course at any time within “21 days after serving 4 it.” Under Defendants’ interpretation of this rule, Plaintiff does not have a right to 5 amend the complaint if the complaint has not been served. However, courts have 6 consistently held that this rule establishes only the latest date upon which a plaintiff 7 may amend a pleading without leave of court. See, e.g., Ramirez v. Cty. of San 8 Bernardino, 806 F.3d 1002, 1007 (9th Cir. 2015) (collecting cases recognizing right 9 to amend within 21 days of service); United States ex rel. D’Agostino v. EV3, Inc., 10 802 F.3d 188, 193 (1st Cir. 2015) (explaining that the 2009 amendments to Rule 15 11 did not alter the longstanding rule that a “plaintiff is allowed to amend as a matter 12 of course at any time between filing his complaint and receiving the defendant’s 13 answer”); Thompson v. Stanford Univ., 16-CV-06826-BLF, 2017 WL 2772033, at 14 *3 (N.D. Cal. June 26, 2017) (“The Ninth Circuit, as well as the Fed. R. Civ. P. 15 15 advisory committee’s note to 2009 amendment, thus clearly recognize this right to 16 amend a complaint until 21 days after service of the complaint.”). Because Plaintiff 17 amended her complaint before the original complaint was served, the amendment 18 was proper under Fed. R. Civ. P. 15. Accordingly, Defendants have been timely 19 served with the correct pleadings. 20 ORDER - 3 1 Accordingly, IT IS HEREBY ORDERED: 2 1. to FRCP 4, ECF No. 12, is DENIED. 3 4 2. 7 8 Defendants’ Motion to Strike Amended Complaint Pursuant to FRCP 15, ECF No. 13, is DENIED. 5 6 Defendants’ Motion to Dismiss Complaint Without Prejudice Pursuant IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 18th day of January 2018. 9 __________________________ SALVADOR MENDOZA, JR. United States District Judge 10 11 12 13 14 15 16 17 18 19 20 ORDER - 4

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