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Burington v. T.D. Service Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 20, 2009

WARREN L. BURINGTON; SANDRA BURINGTON, PLAINTIFFS,
v.
T.D. SERVICE COMPANY; ET. AL., DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING AS MOOT MOTION TO DISMISS AND TO STRIKE ALLEGATIONS WITHOUT PREJUDICE [doc. #7] and DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AS MOOT [doc. #13]

Defendant Bank of America, N.A. and T.D. Service Company filed a motion to dismiss the complaint and to strike certain allegations from the complaint. [doc. #7]. Rather than address defendants' motion, plaintiffs filed motions for leave to file a first amended complaint and to remand the action.

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, plaintiffs were able to file their first amended complaint without seeking 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 when an amended pleading is filed. See William W. Schwarzer et al., FED. CIV. ROC. BEFORE TRIAL ¶ 9:262 (2009).

Accordingly, defendants' motion to dismiss and to strike allegations are DENIED AS MOOT AND WITHOUT PREJUDICE. Plaintiffs' motion for leave to file a first amended complaint is DENIED AS MOOT. Plaintiffs' shall file their amended complaint within three days of the filing of this Order. Defendants shall file a response to the first amended complaint within the time provided in Rule 15(a)(3). Plaintiffs' motion to remand [doc. #14] remains set for hearing on September 14, 2009 at 10:30 a.m.

IT IS SO ORDERED.

20090720

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