(PS) Nelson Rogers v. Enjalran ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARY A. NELSON ROGERS, No. 2:19-cv-01564-TLN-CKD (PS) 12 Plaintiff, 13 v. ORDER 14 PAUL J. ENJALRAN, et al., (ECF Nos. 11, 15, 16, 17) 15 Defendants. 16 17 Presently pending before the court are defendants’ motions to dismiss. (ECF Nos. 11, 15, 18 16.) Nine days after the first motion to dismiss was filed, plaintiff filed a motion to amend her 19 complaint and filed a first amended complaint. (ECF Nos. 17, 18.) Federal Rule of Civil 20 Procedure 15(a) allows for a complaint to be amended “once as a matter of course within . . . 21 21 days after service of a motion under Rule 12(b).” This amendment as a matter of course renders 22 an original complaint non-existent. Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) 23 (“[W]hen a plaintiff files an amended complaint, the amended complaint supersedes the original, 24 the latter being treated thereafter as non-existent.”). Because plaintiff’s original complaint has 25 been superseded by the first amended complaint, defendants’ motions to dismiss the original 26 complaint are denied as moot. Accordingly, the hearing scheduled on defendants’ motions for 27 January 8, 2020, is vacated. 28 Additionally, it appears that plaintiff is attempting to dismiss the parties who filed motions 1 | to dismiss in this matter—Tim Marriott, Dave Roughton, Donna Allred, and K. Knight—as they 2 | are no longer named in plaintiffs first amended complaint. (Compare ECF No. 1 at 2-7 with 3 | 18 at 2-4.) Plaintiff also does not name the Secretary of Treasury or the Postmaster 4 | General in her amended complaint. (See ECF No. 18.) 5 Accordingly, plaintiff is to file with the court, within 21 days of this order, a declaration as 6 | to why the defendants not named in her amended complaint should not be dismissed from this 7 | action. In the alternative, plaintiff is to file a motion with this court requesting dismissal of the 8 || defendants not named in her amended complaint. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Defendants’ pending motions to dismiss (ECF Nos. 11, 15, 16) are DENIED as moot; ll 2. The hearing on defendants’ motions scheduled for January 8, 2020, is VACATED; 12 3. In the court’s discretion and for the sake of clarity, plaintiffs motion to file an 13 amended complaint (ECF No. 17) is GRANTED and the first amended complaint (ECF 14 No. 18) is the now-operative complaint; and 15 4. Within 21 days of this order plaintiff shall file a response to this order explaining why 16 the unnamed defendants should not be dismissed, or, in the alternative, affirm that she is 17 requesting their dismissal under Federal Rule of Civil Procedure 41. 18 || Dated: December 17, 2019 bh rdf /f { 19 CAROLYN K. DELANEY 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 jr. 1564. rogers 25 26 27 28