Alvarado v. Scholle IPN Packaging, Inc. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 RAUL ALVARADO, individual and on CASE NO. 1:19-CV-1673 AWI SKO behalf of other members of the general 8 public similarly situated, et al., ORDER VACATING HEARING AND 9 Plaintiffs DENYING MOTION TO DISMISS AS MOOT 10 v. 11 SCHOLLE IPN PACKAGING, INC., et (Doc. No. 6) al., 12 Defendants 13 14 15 On December 4, 2019, Defendant filed a combination Rule 12(b)(6) and Rule 12(f) motion 16 to dismiss or strike. See Doc. No. 6. Hearing on this motion is set for January 13, 2020. On 17 December 20, 2019, Plaintiffs filed a first amended complaint. See Doc. No. 7. 18 Federal Rule of Civil Procedure 15 governs amended pleadings. In pertinent part, Rule 19 15(a) reads: “A party may amend its pleading once as a matter of course within . . ., if the 20 pleading is one to which a responsive pleading is required, 21 days after service of the responsive 21 pleading or 21 days after service of a motion under Rule 12(b) . . . .” Fed. R. Civ. P. 15(a)(1)(B). 22 A properly filed “amended complaint supersedes the original [complaint], the latter being treated 23 thereafter as non-existent.” Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 24 20015); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 25 Here, Plaintiffs' amended complaint is timely under Rule 15(a)(1)(B) since it was filed 26 within 21 days of the motion to dismiss. Defendants’ motion now attacks a complaint that is no 27 longer operative. Ramirez, 806 F.3d at 1008. Therefore, the hearing on Defendant’s motion to 28 dismiss will be vacated and the motion will be denied as moot. Id. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The January 13, 2020, hearing is VACATED; and 3 2. Defendants’ Rule 12 motion (Doc. No. 6) is DENIED as MOOT. 4 5 IT IS SO ORDERED. 6 | Dated: _ January 7, 2020 Z : Cb □□ _-SENIOR DISTRICT JUDGE 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28