UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 5, 2009
ROMERO CHUA, PLAINTIFF,
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING MOTION TO DISMISS AS MOOT AMERICA'S WHOLESALE
Defendant filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and a motion to strike pursuant to Rule 12(f). Subsequently Plaintiff filed a first amended complaint. For the reasons which follow, Defendant's motions are DENIED AS MOOT.
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). A motion such as a motion to dismiss or a motion to strike is not a pleading, and therefore not a responsive pleading, as the term is used in the Federal Rules of Civil Procedure. Fed. R. Civ. Proc. 7(a); see Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). Accordingly, Plaintiff was able to file its first amended complaint without leave of court. See id.
An amended complaint supersedes a prior complaint as a pleading. Forsyth v. Humana,, 114 F.3d 1467, 1474 (9th Cir. 1997). A district court may treat as moot a pending motion to dismiss a superseded pleading, particularly where the amended complaint cures the pleading defect raised in the motion. See William W. Schwarzer et al., Fed. Civ. Proc. Before Trial ¶ 9:262 (2009).
Accordingly, Defendant's motion to strike and motion to dismiss are DENIED AS MOOT. Defendant shall file a response to the first amended complaint within the time provided in Rule 15(a)(3).
IT IS SO ORDERED.
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