Mix v. Ocwen Mortgage Servicing, Inc. et al

Filing 19

ORDER TO SHOW CAUSE directing Defendant Ocwen to show cause why the court should not deny it's pending motion to dismiss as moot 14 . Ocwen to respond to court's order in its reply brief which is due 7/28/2017. Signed by Judge James L. Robart. (PM)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 WILLIAM MIX, CASE NO. C17-0699JLR Plaintiff, 11 ORDER TO SHOW CAUSE v. 12 13 OCWEN LOAN SERVICING LLC, Defendant. 14 15 On June 30, 2017, Defendants Ocwen Loan Servicing LLC (“Ocwen”) and Ocwen 16 Mortgage Servicing Inc.,1 filed a motion to dismiss Plaintiff William Mix’s complaint. 17 (MTD (Dkt. # 14).) The motion to dismiss is noted for July 28, 2017. (See id.) 18 Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), Mr. Mix amended his complaint 19 on July 20, 2017. (FAC (Dkt. # 18)); Fed. R. Civ. P. 15(a)(1)(B) (“A party may amend 20 21 22 1 Plaintiff William Mix has since dismissed Ocwen Mortgage Servicing Inc., from this lawsuit, leaving only Ocwen Loan Servicing LLC, as a defendant. (See Not. of Dismissal (Dkt. # 17).) ORDER - 1 1 its pleading once as a matter of course within . . . 21 days after service of a motion under 2 Rule 12(b) . . . .”). 3 An amended complaint supersedes the original complaint and renders the original 4 complaint without legal effect. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 5 2012); see also Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (“[I]t is 6 well-established that an amended complaint supersedes the original, the latter being 7 treated thereafter as non-existent.”) (quotation marks omitted). Courts often apply this 8 principle to deny as moot motions to dismiss a complaint that a plaintiff has since 9 amended. See, e.g., Wagner v. Choice Home Lending, 266 F.R.D. 354, 360 (D. Ariz. 10 2009) (“As both motions pertain to Plaintiff’s original complaint and Plaintiff has since 11 filed an Amended Complaint, both Motions are now moot.”); Garibaldi v. JPMorgan 12 Chase Bank, N.A., No. 109-CV-00574-AWI-GSA, 2009 WL 1531565, at *1 (E.D. Cal. 13 May 28, 2009) (“The amended complaint has superseded the original complaint in its 14 entirety, and the court is now proceeding with the amended complaint. Thus, 15 Defendants’ motion addressing the original complaint is now moot.”); Ezonics Corp. v. 16 Primax Elecs., Ltd., No. C04-5370 MMC, 2005 WL 851015, at *1 (N.D. Cal. Apr. 13, 17 2005) (denying a motion to dismiss as moot because the amended complaint superseded 18 the original complaint). Courts may, however, consider a motion to dismiss the original 19 complaint if the amended complaint suffers from the same deficiencies as the original 20 complaint. See, e.g., Jordan v. City of Phila., 66 F. Supp. 2d 638, 641 n.1 (E.D. Pa. 21 1999) (“Since Counts IV through XII of the amended complaint suffer from the same 22 deficiencies that are addressed in defendants’ motion to dismiss, the court will allow the ORDER - 2 1 motion to dismiss these counts to be considered as addressing the amended complaint.”); 2 Sun Co. (R & M) v. Badger Design & Constructors, Inc., 939 F. Supp. 365, 367 (E.D. Pa. 3 1996) (“[T]he contentions presented in Defendants’ initial Motion to Dismiss are 4 germane to the Amended Complaint because it failed to cure a majority of the 5 deficiencies initially alleged.”). 6 Based on the foregoing authority, the court ORDERS Ocwen to show cause why 7 the court should not deny its pending motion to dismiss as moot. Ocwen must respond to 8 the court’s order in its reply brief, which is due on Friday, July 28, 2017, indicating 9 whether the pending motion to dismiss is moot or should be considered despite the 10 amended complaint. See Local Rules W.D. Wash. LCR 7(d)(3) (“Any reply papers shall 11 be filed and served no later than the noting date.”). Mr. Mix may also address the 12 mootness issue in his opposition to Ocwen’s motion to dismiss. See id. (“Any opposition 13 papers shall be filed and served not later than the Monday before the noting date.”). 14 Dated this 24th day of July, 2017. 15 16 A 17 JAMES L. ROBART United States District Judge 18 19 20 21 22 ORDER - 3

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