UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 3, 2009
CECILIA GONZALEZ PLAINTIFF,
ELECTRONIC REGISTRATION SYSTEMS, HOMEQ SERVICING; MORTGAGE INC.; AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS AS MOOT (Doc. 7) AND VACATING ORAL ARGUMENT SET FOR SEPTEMBER 14, 2009
On June 15, 2009, Defendant Homeq Servicing ("Defendant") filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The motion is directed to the original Complaint of Plaintiff Cecilia Gonzalez ("Plaintiff"). On June 16, 2009, Plaintiff filed a First Amended Complaint. (Doc. 9.)
Federal Rule of Civil Procedure 15(a)(1)(A) provides that a party may amend its pleading once "as a matter of course" "before being served with a responsive pleading." Defendant's motion to dismiss is not a responsive pleading under Rule 15(a)(1)(A). Schreiber Distrib. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). When, as here, Rule 15(a)(1)(A) applies, it provides an "absolute right to amend." Rick-Mik Enters., Inc. v. Equilon Enters., LLC, 532 F.3d 963, 977 (9th Cir. 2008). The First Amended Complaint is now the operative pleading.
Defendant's motion to dismiss is DENIED as moot, and oral argument set for September 14, 2009, is VACATED.
IT IS SO ORDERED.
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