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Soto v. Countrywide Home Loans

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


September 16, 2009

JOSE SOTO AND ALICIA SOTO, PLAINTIFFS,
v.
COUNTRYWIDE HOME LOANS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., COUNTRYWIDE FULL SPECTRUM LENDING AND DOES 1-20 INCLUSIVE DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER*fn1

On August 6, 2009, Defendants Countrywide Home Loans and Mortgage Electronic Registration Systems, Inc. ("Defendants") filed a Rule 12(b)(6) motion to dismiss and a Rule 12(f) motion to strike portions of the Plaintiffs' complaint (Docket No. 11.) However, on August 8, 2009, Plaintiffs filed a first amended complaint (Docket No. 15.)

Under Rule 15(a)(1) "[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). Here, no Defendant has filed an answer in this case, and neither a motion to dismiss nor a motion to strike are considered responsive pleadings for the purposes of Rule 15(a). See Crum v. Circus Circus Enter., 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."); Phillips v. Borough of Keyport, 179 F.R.D. 140, 145-46 (D. N.J. 1998)(stating that a motion to strike is not a responsive pleading for the purposes of Rule 15).

Since Plaintiffs were authorized to amend their original complaint, the first amended complaint is now the operative pleading. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997)(stating that an amended complaint supersedes the original complaint). Therefore, Defendants' pending motions which do not address the operative pleading are denied as moot.


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