Thomas v. Nationwide Insurance Company ( 2023 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ETHEL THOMAS, et al., CASE NO. 1:22-CV-1525 AWI BAM 9 Plaintiffs ORDER VACATING JANUARY 30, 2023 10 v. HEARING AND ORDER ON DEFENDANTS’ MOTION TO DISMISS 11 NATIONWIDE MUTUAL INSURANCE COMPANT, et al., 12 (Doc. No. 9) Defendants 13 14 15 Currently pending before the Court is a Rule 12(b)(6) motion to dismiss by Defendant 16 Nationwide Mutual Insurance Company (“Nationwide”). Hearing on this motion is set for 17 January 30, 2023. 18 Background 19 On November 23, 2022, Nationwide removed this case from the Fresno County Superior 20 Court. 21 On December 28, 2022, Defendant filed a Rule 12(b)(6) motion to dismiss. 22 On January 13, 2023, Plaintiffs filed their First Amended Complaint (“FAC”). 23 Discussion 24 Under Rule 15(a), “A party may amend its pleading once as a matter of course within: . . . 25 (B) if the pleading is one to which a responsive pleading is required . . . 21 days after service of a 26 motion under Rule 12(b), (e), or (f) . . . .” Fed. R. Civ. P. 15(a)(1)(B). This rule confers upon a 27 party a right to amend, the only limitations being those found within Rule 15(a)(1) itself. Ramirez 28 1 |v. County of San Bernardino, 806 F.3d 1002, 1007-08 (9th Cir. 2015). The Ninth Circuit has used 2 | the term “absolute right” in describing a party’s ability to amend under Rule 15(a)(1). See Rik- 3 | Mik Enters., Inc. v. Equilon Enters. LLC, 532 F.3d 963, 977 (9th Cir. 2015); Shaver v. Operating 4 | Eng’rs Local 428 Penstion Trust Fund, 332 F.3d 1198, 1201 (9th Cir. 2003); see also Ramirez, 5 F.3d at 1007. “[A]n amended complaint supersedes the original, the latter being treated 6 thereafter as non-existent” and as no longer performing any function in the case. Ramirez, 806 7 | F.3d at 1008; see also Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th 8 1989). 9 Here, Plaintiff filed his FAC within twenty-one days from the date Nationwide filed its 10 12(b)(6) motion. Therefore, the FAC was timely under Rule 15(a)(1)(B). Because the FAC 11 | was timely filed, the FAC is the operative complaint, and the original complaint is now non- 12 existent and performs no function in this case. See id. Because Defendants’ Rule 12(b)(6) motion 13 attacking a now non-existent complaint, the Rule 12(b)(6) motion is moot. See Ramirez, 806 14 | F.3d at 1008; Hal Roach Studios, 896 F.2d at 1546. 15 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that: 18 | 1. Defendant’s Rule 12(b)(6) motion to dismiss (Doc. No. 13) is DENIED as moot; and 19 The January 30, 2023, hearing on Defendant Nationwide’s now moot Rule 12(b)(6) motion 20 is VACATED. 21 IT IS SO ORDERED. 3) eee ~_-SENIOR DISTRICT JUDGE 24 25 26 27 28