The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
(1) PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT [Doc. #41] and
(2) DEFENDANT'S PENDING MOTION TO DISMISS [Doc. #37]
On March 8, 2007, Plaintiff, a California state prisoner proceeding pro se, filed a complaint under 42 U.S.C. § 1983. On August 14, 2007, Defendants filed a motion to dismiss the complaint on a number of grounds. The motion was calendared for hearing on October 12, 2007. On August 29, 2007, Plaintiff filed an ex parte "Request to Amend Petition to Correct Deficiencies." In his filing, Plaintiff indicates that Defendant's motion to dismiss identified a number of deficiencies in his original complaint that were unintentional and he requests leave to file an amended complaint. Plaintiff's proposed amended complaint is attached as Exhibit B to his "request." The Court deems Plaintiff's filing a motion for leave to file an amended complaint.
Federal Rule of Civil Procedure 15(a) requires that leave to amend a complaint be "freely given when justice so requires." See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (Rule 15(a) amendment policy "is to be applied with extreme liberality"). However, the Court notes that, beyond amendment by leave of the court, Rule 15(a) allows a party to amend its pleading "once as a matter of course at any time before a responsive pleading is served." In this case, Defendants have not yet filed an answer to Plaintiff's original complaint. Rather, they filed a motion to dismiss under Federal Rule of Civil Procedure 12(b). A motion to dismiss, however, is not a "responsive pleading" within the meaning of Rule 15(a). See Breier v. Northern Cal. Bowling Proprietors' Ass'n, 316 F.2d 787, 789 (9th Cir. 1963). Therefore, Plaintiff is permitted to amend his complaint as a matter of course at this juncture. Accordingly, Plaintiff's amended complaint, which is attached as Exhibit B to Plaintiff's present motion, shall be re-filed by the Clerk as a "First Amended Complaint."
In addition, in light of the fact that Plaintiff's operative pleading has now been replaced, the Court hereby requests that Defendants file a notice, within 15 days of entry of this order, indicating whether they wish to proceed with their previously filed motion to dismiss, or whether they wish to withdraw it and file a new response to Plaintiff's amended complaint.
If Defendants indicate that they intend to proceed with their previously filed motion, the hearing on Defendants' motion will remain calendared for October 12, 2007. Plaintiff must be prepared to file any opposition to the motion by September 28, 2007, in accordance with CivLR 7.1(e)(2).
If, however, Defendants withdraw their pending motion to dismiss, they will be required to file a response to Plaintiff's amended complaint within 30 days of entry of this order. Any withdrawal by Defendants of their pending motion will be without prejudice to their ability to file a renewed motion to dismiss.
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