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La v. Allen

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 17, 2008

GRACE E. LA, PLAINTIFF,
v.
ANDRA LEONARD ALLEN AND FOREVER DIAMONDS, DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge

ORDER DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT

On March 21, 2008, Plaintiff Grace E. La filed the Complaint in this matter against Defendants Andra Leonard Allen and Forever Diamonds. (Doc. # 1). On May 9, 2008, Defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted and for lack of personal jurisdiction. (Doc. # 5). On May 30, 2008, Plaintiff filed a First Amended Complaint. (Doc. # 6).

DISCUSSION & ORDER

FED. R. CIV. P. 15(a) provides in pertinent part that,

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course:

(A) before being served with a responsive pleading; or

(B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.

In the context of FED. R. CIV. P. 15(a)(1)(A), a motion to dismiss is not a responsive pleading. See Shaver v. Operating Engineers Local 428 Pension Trust Fund, 332 F.3d 1198, 1201 (9th Cir. 2003); Morrison v. Mahoney, 339 F.3d 1042, 1046 (9th Cir. 2005).

Plaintiff filed the Complaint in this matter on March 21, 2008, and after that time no Defendant filed a responsive pleading. In light of those facts, the Court finds that Plaintiff had the "absolute right" to file a First Amended Complaint on May 30, 2008. Shaver, 332 F.3d at 1201; see also (Doc. # 6). The Court concludes that Defendants filed the pending motion to dismiss (Doc. # 5) before Plaintiff filed the First Amended Complaint, and that the motion to dismiss is now moot in light of the First Amended Complaint. Accordingly, Defendants' motion to dismiss is DENIED as moot and without prejudice.

IT IS SO ORDERED.

WILLIAM Q. HAYES United States District Judge

20080617

© 1992-2008 VersusLaw Inc.



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