lumarse-inc-a-california-corporation-dba-cdb-translation-interpreting , 132 F.3d 39 ( 1997 )

132 F.3d 39

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
LUMARSE, INC., A California Corporation, dba CDB TRANSLATION
INTERPRETING; Caterina Der BOGHOSSIAN, an
individual, Plaintiffs-Appellants,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant, and
SOCIAL SECURITY ADMINISTRATION, Office of Hearings &
Appeals, an agency of the government of the United States of
America; Stanley S. Sudar, an individual, Defendants-Appellees.

No. 96-56515.

United States Court of Appeals, Ninth Circuit.

Dec. 9, 1997.
Argued and Submitted December 3, 1997 Pasadena, California

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding.

Before: BRUNETTI, HALL, and RYMER, Circuit Judges.

ORDER*

The district court erred by dismissing plaintiffs' complaint with prejudice. Under Fed.R.Civ.P. 15(a), "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served...." The defendants in this case never filed an answer. Instead, they filed a motion to dismiss. This court has expressly held that: "[a] motion to dismiss is not a 'responsive pleading' within the meaning of the Rule. Neither the filing nor granting of such a motion before answer terminates the right to amend; an order of dismissal denyinct leave to amend at that stage is improper." Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995) (citation and internal quotation omitted).

The district court also failed tc state any reasons in its order dismissing plaintiffs' complaint with prejudice. We decline to speculate whether the district court found that further amendment would be futile. See id.

REVERSED and REMANDED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3