Strojnik v. Uniwell Fresno Hotel, LLC ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 PETER STROJNIK, SR., CASE NO. 1:19-CV-1193 AWI SAB 8 Plaintiff ORDER VACATING HEARING AND 9 v. DENYING MOTION TO DISMISS AS MOOT 10 UNIWELL FRESNO HOTEL, LLC, dba Double Tree by Hilton Fresno Convention 11 Center, (Doc. No. 9) 12 Defendant 13 14 15 On November 13, 2019, Defendant filed a Rule 12(b)(1) and Rule 12(b)(6) motion to 16 dismiss. See Doc. No. 9. Hearing on this motion is set for December 16, 2019. On November 18, 17 2019, Plaintiff filed a first amended complaint. See Doc. No. 12. 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, Plaintiff's amended complaint is timely under Rule 15(a)(1)(B) since it was filed 26 within 21 days of the motion to dismiss. Defendant’s 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 December 16, 2019, hearing is VACATED; 3 2. Defendant’s motion to dismiss (Doc. No. 9) is DENIED as MOOT; and 4 3. Defendant may file a responsive motion or pleading to the First Amended 5 Complaint within twenty-one (21) days of service of this order. 6 7 IT IS SO ORDERED. □□ g Dated: _ November 19, 2019 Z : Cb □□ — SENIOR DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28