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Ortiz v. Kraft Foods Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 9, 2007

TERRI ORTIZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
KRAFT FOODS COMPANY, A DELAWARE CORPORATION, DEFENDANTS.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING AS MOOT MOTION TO DISMISS COMPLAINT [Dkt No. 13]

On July 30, 2007, the deadline for the filing of an Opposition to defendant's pending Motion To Dismiss Complaint (Dkt No. 13), plaintiff Terri Ortiz instead filed a First Amended Complaint. The Ninth Circuit allows a plaintiff to amend the Complaint once as a matter of right even after a motion to dismiss has been filed (or even granted), as long as the action has not been dismissed and the amended complaint is otherwise timely. Doe v. United States, 58 F.3d 494, 496-97 (9th Cir. 1995), citing Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) ("a motion to dismiss is not a 'responsive pleading' within the meaning of [Fed. R. Civ. P. 15(a)]") (citation omitted). "Neither the filing nor granting of such a motion before answer terminates the right to amend. . . ." Schreiber Distributing, 806 F.2d at 1401 (citation omitted). Accordingly, defendant's Motion To Dismiss is DENIED AS MOOT.

IT IS SO ORDERED.

20070809

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