YellowCake, Inc. v. DashGo, Inc. ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 YELLOWCAKE, INC., a California CASE NO. 1:21-CV-0803 AWI BAM corporation, 11 Plaintiffs ORDER VACATING AUGUST 16, 2021 12 HEARING AND ORDER ON v. DEFENDANTS’ MOTION TO STRIKE 13 DASHGO, INC., a Delaware corporation, 14 and AUDIOMICRO, INC. d/b/a ADREV, a (Doc. No. 4) Delaware corporation, 15 Defendants 16 17 18 This is a copyright infringement action that stems from the alleged improper infringement 19 of hundreds of domestic and foreign copyrighted works. Currently before the Court is a Rule 20 12(f) motion to strike by Defendant. Hearing on this motion is set for August 16, 2021. 21 Background 22 On May 17, 2021, Plaintiff filed its complaint for damages. 23 On July 1, 2021, Defendants filed a Rule 12(f) motion to strike. 24 On July 21, 2021, Plaintiff filed a First Amended Complaint (“FAC”). 25 Discussion 26 Under Rule 15(a)(1)(B), “A party may amend its pleading once as a matter of course: . . . 27 (B) if the pleading is one to which a responsive pleading is required . . . 21 days after service of a 28 1 | motion under Rule 12(b), (e), or (f)....” This rule confers upon a party a right to amend, the 2 | only limitations being those found within Rule 15(a)(1) itself. Ramirez v. County of San 3 Bernardino, 806 F.3d 1002, 1007-08 (9th Cir. 2015). Some courts have used the term “absolute 4 | right” in describing a party’s ability to amend under Rule 15(a)(1). E.g. In re Alfes, 709 F.3d 631, 5 |639 (6th Cir. 2013); Galustian v. Peter, 591 F.3d 724, 730 (4th Cir. 2010); James Hurson Assocs., 6 | Inc. v. Glickman, 229 F.3d 277, 282-83 (D.C. Cir. 2000). “[A]n amended complaint supersedes 7 original, the latter being treated thereafter as non-existent” and as no longer performing any 8 function in the case. Ramirez, 806 F.3d at 1008; see also Hal Roach Studios, Inc. v. Richard 9 | Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989). 10 Here, Plaintiff filed its FAC on the twentieth day after Defendants filed their Rule 12(f) 11 |motion. Therefore, the FAC was timely under Rule 15(a)(1)(B). Because the FAC was timely 12 |filed, the FAC is the operative complaint, and the original complaint is now non-existent and 13 | performs no function in this case. See id. Because Defendants’ Rule 12(f) motion is attacking a 14 |now non-existent complaint, the Rule 12(f) motion is moot. See Ramirez, 806 F.3d at 1008; Hal 15 Roach Studios, 896 F.2d at 1546. 16 17 ORDER 18 Accordingly, IT IS HEREBY ORDERED that: 19 }1. Defendants’ Rule 12(f) motion to strike (Doc. No. 4) is DENIED as moot; and 20 | 2. The August 16, 2021 hearing on Defendants’ now moot Rule 12(f) motion is VACATED. 21 IT IS SO ORDERED. 3 eee ~_-SENIOR DISTRICT JUDGE 24 25 26 27 28