United States District Court, N.D. California
November 21, 2005.
WINDSPEED ACQUISITION FUND GP, LLC, Plaintiff,
DOVEBID, INC., et al., Defendants.
The opinion of the court was delivered by: SAUNDRA ARMSTRONG, District Judge
On August 12, 2005, Plaintiff filed a complaint against
defendants Dovebid, Inc. ("Dovebid"), Ross Dove ("Dove"), Bill
Burnham ("Burnham"), and William Price ("Price") [Docket No. 1].
On October 28, 2005, defendant Dovebid filed a Motion to
Dismiss, defendants Burnham and Price filed a Motion to Dismiss
(collectively, "Joint Motions to Dismiss"), and defendant Dove
joined in the Joint Motions to Dismiss. The Joint Motions to
Dismiss were set for a January 24, 2006 hearing.
On November 17, 2005, Plaintiff filed a First Amended Complaint
[Docket No. 20]. Also on that date, Plaintiff filed an Opposition
to Defendants' Joint Motions to Dismiss. In the Opposition,
Plaintiff requests that the Court deny the Joint Motions to
Dismiss as moot.
By its very nature, the First Amended Complaint supersedes
Plaintiff's initial complaint. See Loux v. Rhay, 375 F.2d 55,
57 (9th Cir. 1967) ("The amended complaint supersedes the
original, the latter being treated thereafter as non-existent.").
The Court therefore finds that the Joint Motions to Dismiss have
been rendered moot, and that it does not serve the interests of
judicial economy to proceed on motions that are no longer
directed at the operative complaint.
IT IS HEREBY ORDERED THAT the Motion to Dismiss of Dovebid and
the Motion to Dismiss of Burnham and Price are DENIED AS MOOT.
The January 24, 2006 hearing on the Motions to Dismiss is VACATED.
IT IS FURTHER ORDERED THAT the Case Management Conference
originally scheduled for December 14, 2005 at 3:15 p.m. is
VACATED. The parties shall appear for a telephonic Case
Management Conference on Wednesday, January 25, 2006 at 2:45
p.m. The parties shall meet and confer prior to the conference
and shall prepare a joint Case Management Conference Statement
which shall be filed no later than ten (10) days prior to the
Case Management Conference. Plaintiff shall be responsible for
filing the statement as well as for arranging the conference
call. All parties shall be on the line and shall call (510)
637-3559 at the above indicated date and time.
IT IS FURTHER ORDERED THAT Defendants are granted leave to
respond to Plaintiff's First Amended Complaint within fifteen
(15) days of the date of this Order. Additionally, Plaintiff is
expressly reminded that, pursuant to Federal Rule of Civil
Procedure 15, it may not file another amended complaint without
first seeking prior leave of Court. The parties are further
reminded of their obligation to engaged in a meaningful meet and
confer prior to filing any motions with this Court.
IT IS SO ORDERED.
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