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Fraker v. Bayer Corp.

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


June 15, 2009

DEBORAH FRAKER, AS AN INDIVIDUAL CONSUMER, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
BAYER CORPORATION, AN INDIANA CORPORATION, DEFENDANT.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ON STIPULATION AND MOTIONS TO DISMISS AND STRIKE

(Doc. Nos. 11, 12, and 18)

Currently pending before the Court are Defendant's Rule 12(b)(6) and Rule 12(f) motions. Hearing on these matters was set for June 8, 2009. On May 25, 2009, Plaintiff filed a response to the motions in which she explained her intention of filing an amended petition through Rule 15. Defendant filed no reply. On June 4, 2009, the Court issued an order directing Plaintiff to file her amended complaint on or by June 8, 2009, or else the Court would take the matter under submission and rule. On June 12, 2009, Plaintiff filed an amended complaint and a stipulation. The stipulation provides that Defendants do not object to the late filed amended complaint and explains that, after May 25, Plaintiff's counsel had to fly to South Carolina due to an unexpected death in his family. Plaintiff's counsel did not return until the evening of June 10, 2009.

Under these circumstances, the Court will extend the deadline for filing the amended complaint. Further, an "amended complaint supersedes the original, the latter being treated thereafter as non-existent." Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Since Defendant's motions attack Plaintiff's original and now "non-existent" complaint, Defendant's motions are now moot.

Accordingly, IT IS HEREBY ORDERED that:

1. The Parties June 12, 2009, stipulation is GRANTED and Plaintiff's June 12, 2009, First Amended Complaint will be considered timely filed and operative;

2. Defendant's motion to dismiss and motion to strike are DENIED as moot; and 3. Defendant shall file either an answer or an otherwise appropriate motion within twenty-one (21) days of service of this order.

IT IS SO ORDERED.

20090615

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