UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
April 4, 2008
JIM COLLINS ET AL., PLAINTIFFS,
WINEX INVESTMENTS, LLC, ET AL., DEFENDANTS,
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING AS MOOT DEFENDANTS' MOTION TO DISMISS
Currently pending before the court are Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and motion to strike pursuant to Rule 12(f) . On April 3, 2008, Plaintiffs filed an amended complaint. "A party may amend its pleading once as a matter of course  before being served with a responsive pleading. Fed. R. Civ. Proc. 15(a)(1). "A motion to dismiss for failure to state a claim is not a responsive pleading." Allwaste, Inc., 65 F.3d 1523, 1530 (9th Cir. 1995). Plaintiff therefore had a right to file an amended complaint without leave to court. See id. An amended complaint supersedes a prior complaint as a pleading. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). Therefore, where a plaintiff elects to file an amended complaint, a district court may treat an existing motion to dismiss as moot. Defendants' motions to dismiss and to strike are DENIED AS MOOT. This order is WITHOUT PREJUDICE to Defendants moving to dismiss or strike Plaintiffs' amended complaint.
IT IS SO ORDERED.
© 1992-2008 VersusLaw Inc.