(PS) McGee v. Airport Little League Baseball Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFERSON A. McGEE, No. 2:21-cv-1654 DAD DB PS 12 Plaintiff, 13 v. ORDER 14 AIRPORT LITTLE LEAGUE BASEBALL, INC., et al, 15 16 Defendants. 17 18 Plaintiff Jefferson A. McGee is proceeding in this action pro se. This matter was referred 19 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On 20 October 19, 2021, the Clerk entered default as to defendant Enrique Hernandez. (ECF No. 7.) 21 On July 25, 2022, defendant Enrique Hernandez filed a motion to set aside the Clerk’s entry of 22 default and noticed the motion for hearing before the undersigned on September 9, 2022. (ECF 23 No. 35.) 24 However, on August 19, 2022, the undersigned dismissed plaintiff’s amended complaint 25 with leave to file a second amended. (ECF No. 38.) The second amended complaint will 26 supersede the amended complaint “the latter being treated thereafter as non-existent.” Lacey v. 27 Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012). Once plaintiff files the second amended 28 complaint, defendant Hernandez will have an opportunity to file a response to the second 1 | amended complaint. Accordingly, defendant’s motion to set aside default will be denied without 2 || prejudice to renewal as having been rendered moot. See Wahoo Intern., Inc, v. Phix Doctor, Inc., 3 | Nos. 09-15703, 09-150806, 2015 WL 410347, at *2 (S.D. Cal. Aug. 29, 2015) (“the amended 4 | complaint rendered the default moot”). 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Defendant’s July 25, 2022 motion to set aside default (ECF No. 35) is denied without 7 | prejudice to renewal as having been rendered moot; and 8 2. The September 9, 2022 hearing of defendant’s motion is vacated. 9 | Dated: September 2, 2022 10 11 D -BORAH BARNES UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 | DLB:6 DB/orders/orders.pro se/mcgee1654.def.moot.ord 28