IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 20, 2009
V. STEVEN BOOTH, PLAINTIFF,
SCOTT CARVELL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT (Doc. 8) AND VACATING ORAL ARGUMENT SET FOR APRIL 27, 2009
On December 12, 2008, Plaintiff V. Steven Booth, proceeding in pro per, filed a Complaint for Damages for Constitutional Violations against Defendants Scott Carvell and Al Rogers, both alleged to be employees of Kern County. The Complaint alleged claims arising out of Defendants' execution of a search warrant on April 15, 2008.
On February 9, 2009, Defendants filed a motion to dismiss the Complaint for failure to state a claim upon which relief can be granted, noticing the motion for hearing on April 27, 2009.
On April 13, 2009, Plaintiff filed a First Amended Complaint for Damages for Constitutional Violations against Defendants Carvell and Rogers.
Defendants' motion to dismiss is DENIED as moot and oral argument set for April 27, 2009 is VACATED. Rule 15(a)(1)(A), Federal Rules of Civil Procedure, provides that a party may amend its pleading once as a matter of right before being served with a responsive pleading. A motion to dismiss for failure to state a claim is not a responsive pleading under Rule 15(a)(1)(A). Schreiber Distrib. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986).
IT IS SO ORDERED.
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