This matter was before the court on January 21, 2009, for hearing on defendant, Sacramento Police Officer, Gary Dahl's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Attorney Marcos Kropf appeared on behalf of defendant. Plaintiff appeared and represented himself in pro se.
Defendant's motion was previously scheduled for hearing on December 10, 2008. However, plaintiff failed to file either an opposition brief, or statement of no opposition, as required by the Local Rules. Accordingly, on December 4, 2008, this court continued the hearing date and issued an order directing plaintiff to show cause why sanctions should not be imposed for his failure to respond to defendants' motion.
Plaintiff has now filed an opposition to the motion and has responded to the order to show cause, and the court declines to impose sanctions.*fn1
Since the filing of the motion to dismiss plaintiff filed, on November 4, 2008, a proposed amended complaint.*fn2 It appears that plaintiff intends this newly filed complaint to supersede his original complaint and to proceed as the operative complaint in this case.
Although the subsequent filing of an amended complaint that may or may not moot the issues raised in the motion and creates certain inefficiencies to the extent that it might require re-briefing of the motion, it is apparent that the amended complaint here is permitted by the rules. "Under Rule 15(a) of the Federal Rules of Civil Procedure, '[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . ." Fed. R. Civ. P. 15(a). . . 'A motion to dismiss is not a "responsive pleading" within the meaning of the Rule. Neither the filing nor granting of such a motion before answer terminates the right to amend; an order of dismissal denying leave to amend at that stage is improper." Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995) (emphasis added) (internal quotation marks omitted)." United States ex rel. Saaf v. Lehman Brothers, 123 F.3d 1307, 1308 (9th Cir. 1997).
Here, defendant has filed a motion to dismiss but has not served a responsive pleading for purposes of whether plaintiff may amend as of right under Rule 15. Plaintiff's amended complaint is therefore permissible under Rule 15 and thus supersedes his original pleading. Defendant's motion as to the original complaint is therefore moot. However, defendant shall have an opportunity to refile any appropriate motion addressing the amended complaint.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion to dismiss [Dckt. No. 6] plaintiff's original complaint is denied as moot.
2. The order to show cause is discharged.
3. The action shall proceed on the amended complaint filed on November 4, 2008; the provision in paragraph one of the Order filed December 4, 2008 to designate that complaint as "disregard" is vacated.
4. Defendants shall have twenty days after the filing date of this order to file a responsive pleading to the amended ...