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Carey v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 12, 2009

GEORGE CAREY, ET. AL., PLAINTIFFS,
v.
UNITED STATES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiffs, proceeding in pro per, bring this action to quiet title to real property. Defendant United States filed a motion to dismiss plaintiffs' complaint on November 20, 2008. A hearing was held on this motion on January 14, 2009. The motion was taken under submission, but the parties were allowed an opportunity to file supplemental briefs. On January 20, 2009, instead of filing a supplemental brief to address the issues raised at the hearing and in the motion to dismiss, the plaintiffs filed a first amended complaint (Doc. 12). Plaintiffs contend the filing of this amended complaint renders the motion to dismiss moot.

Defendant filed a response to the first amended complaint and notice that the amended complaint renders the motion to dismiss moot on February 4, 2009. In its response, the United States contends that the amended complaint fails to make any allegations that were not previously addressed in its motion to dismiss. The United States is, therefore, requesting the court consider the motion to dismiss and related briefs in response to the first amended complaint, rather than refiling the same motion.

This request will be granted. As the parties have not actually submitted supplemental merits briefs on the issues raised in the motion and/or hearing, they will be provided a short opportunity to do so.

Accordingly, IT IS HEREBY ORDERED that:

1. Defendant's request to consider the pending motion to dismiss in the context of the amended complaint is granted;

2. Plaintiffs may file a supplemental merits brief as discussed at the January 14, 2009, hearing on or before February 27, 2009; and

3. Defendant may file a responsive supplemental brief on or before March 10, 2009.

20090212

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