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Bogdan v. Countrywide Home Loans

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


August 25, 2009

ERIN BOGDAN, PLAINTIFF,
v.
COUNTRYWIDE HOME LOANS, ET. AL, DEFENDANTS.

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

ORDER VACATING SEPTEMBER 14, 2009, HEARING DATE AND ORDER ON DEFENDANTS'S MOTIONS TO DISMISS

(Doc. Nos. 8 & 10)

Defendant Select Portfolio Servicing filed a Rule 12(b)(6) motion to dismiss on July 28, 2009. See Court's Docket Doc. No. 8. On August 6, 2009, Defendants Countrywide Home Loans, Reconstruct Company, and Mortgage Electronic Registration Systems filed a Rule 12(b)(6) motion to dismiss. See id. at Doc. No. 10. Hearing on both of these motions currently is set for September 14, 2009. See id. at Doc. No. 11. On August 14, 2009, Plaintiff filed an amended complaint. No defendant has filed any answer in this case.

Under Rule 15(a), "A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. Pro. 15(a); Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). "A motion to dismiss is not a 'responsive pleading' within the meaning of Rule 15." Crum, 231 F.3d at 1130 n.3; New v. Armour Pharmaceutical Co., 67 F.3d 716, 722 (9th Cir. 1995); see also Morrison v. Mahoney, 399 F.3d 1042, 1047 (9th Cir. 2005). Thus, 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. Fed. R. Civ. Pro. 15(a); Crum, 231 F.3d at 1130 n.3. 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).

Here, the Defendants did not file answers, but instead filed motions to dismiss. As no prior amended complaints have been filed, Plaintiff was entitled to file her amended complaint as a matter of course under Rule 15(a). The amended complaint supersedes the original complaint, and the original complaint is treated as non-existent. Since Defendants' motions attack Plaintiff's original and now "non-existent" complaint, Defendants' motions are now moot.

Accordingly, IT IS HEREBY ORDERED that:

1. The September 14, 2009, hearing date is VACATED; and

2. Defendants's motions to dismiss, which are Document Numbers 8 and 10 on the Court's docket, are DENIED as moot.*fn1

IT IS SO ORDERED.


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