(PS) Osborne v. Tracy Police Dept ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHELLE OSBORNE, No. 2:20–cv–1805–JAM–KJN (PS) 12 Plaintiff, ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AS MOOT 13 v. (ECF Nos. 4, 8) 14 TRACY POLICE DEPARTMENT, et al., 15 Defendants. 16 17 Plaintiff filed an action in California state court, and on September 8, 2020, defendants 18 removed to this court. (ECF No. 1.) The same day, defendants filed a motion to dismiss and set 19 it for an October 15, 2020 hearing. (ECF No. 4.) On September 22, plaintiff filed a first 20 amended complaint. (ECF No. 8.) 21 Federal Rule of Civil Procedure 15(a) allows for a complaint to be amended “once as a 22 matter of course within . . . 21 days after service of a motion under Rule 12(b) . . . .”). This 23 amendment as a matter of course renders an original complaint null, thereby mooting defendants’ 24 motion to dismiss. Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“[W]hen a plaintiff 25 files an amended complaint, the amended complaint supersedes the original, the latter being 26 treated thereafter as non-existent.”); see also TI, Ltd. v. Grupo Vidanta, 2019 WL 5556127, at *1 27 (S.D. Cal. Oct. 28, 2019) (“[Defendant’s] Motion to Dismiss the Complaint became moot once 28 the Amended Complaint was filed.”); Bhatti v. Goldman, 2014 WL 5089381, at *1 (C.D. Cal. wOASe 2 OVE LOUSY EAINTTING IN RAUCH tA PO ee OY OO 1 | Oct. 9, 2014) (same); Rector v. Capital One Bank (USA), N.A., 2014 WL 12570878, at *1 (E.D. 2 | Cal. May 30, 2014) (same); Krieger v. Atheros Comme'ns, Inc.,2011 WL 2550831, at *1 (N.D. 3 | Cal. June 25, 2011) (same). Thus, the court denies defendants’ motion to dismiss (ECF No. 4.) as 4 | moot. Plaintiff is advised that defendants may file another 12(b) motion, should they so choose, 5 || or may proceed with an answer to the first amended complaint. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Defendant’s pending motion to dismiss (ECF No. 4) is DENIED WITHOUT PREJUDICE 8 as moot; and 9 2. The hearing on defendant’s motion to dismiss is VACATED. 10 | Dated: September 24, 2020 Fensbl A Abar 12 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 13 | osbo.1805 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28