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Beecham v. Homeq

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 1, 2009

CASSIUS BEECHAM, PLAINTIFF,
v.
HOMEQ, FIDELITY NATIONAL TITLE COMPANY, DEUTSCHE BANK NATIONAL TRUST, AND DOES 2-50, INCLUSIVE, DEFENDANTS.

ORDER RE: MOTION TO DISMISS

On March 11, 2009, plaintiff Cassius Beecham brought this action in state court against defendants Homeq, Fidelity National Title Company, and Deutsche Bank National Trust alleging violations of the Truth in Lending Act, 15 U.S.C. §§ 1601-1667f; the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617; the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788.1-1788.33; and California's Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200-17210, as well as claims for breach of contract, breach of the implied covenant of good faith and fair dealing, wrongful foreclosure, breach of fiduciary duty, and fraud. Defendants subsequently removed the action to this court on May 14, 2009.

On May 21, 2009, defendants moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Docket No. 6.) Before defendants' motion could be heard, however, plaintiff filed a First Amended Complaint ("FAC") on June 19, 2009. (Id. No. 9.) No opposition or reply have been filed with respect to defendants' motion to dismiss.

Pursuant to Federal Rule of Civil Procedure 15, "[a] party may amend its pleading once as a matter of course . . . before being served with a responsive pleading." Fed. R. Civ. P. 15(a)(1)(A). A motion to dismiss, moreover, "is not a 'responsive pleading' within the meaning of Rule 15." Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000)). Consequently, "where a motion to dismiss is filed instead of an answer, Rule 15(a) allows a plaintiff to amend the original complaint once as a matter of course without the need of obtaining leave of court." Setencich v. Am. Red Cross, No. 07-3688, 2007 WL 4259590, at *2 (N.D. Cal. Dec. 4, 2007) (citing Fed. R. Civ. P. 15(a); Crum, 231 F.3d at 1130 n.3; Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995)).

Generally, 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) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)); see Hernandez v. Downey Sav. & Loan Ass'n, F.A., No. 08-2336, 2009 WL 532545, at *1 (S.D. Cal. Mar. 3, 2009) ("Because plaintiff has filed an amended complaint before being served with a responsive pleading, the first amended complaint is now the operative complaint."). Thus, upon the filing of an amended complaint, a court "will usually treat the motion to dismiss as mooted." Judge William W. Schwarzer et al., Practice Guide: Federal Civil Procedure Before Trial § 13:11 (Nat'l ed. 2009); see Setencich, 2007 WL 4259590, at *2 ("[B]ecause the [defendant's] motion to dismiss challenges the plaintiff's original and now 'non-existent' complaint, the defendant's motion is moot.").

Here, plaintiff's FAC is now the operative complaint in this case, and defendants' motion to dismiss the original Complaint is moot. Accordingly, the court will deny defendants' motion to dismiss.

IT IS THEREFORE ORDERED that defendants' motion to dismiss be, and the same hereby is, DENIED as MOOT. The hearing currently set for July 6, 2009, is VACATED.

20090701

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