UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 28, 2009
RAFAEL R. RAMIREZ, ET AL., PLAINTIFFS,
QUALITY LOAN SERVICING CORP., DEFENDANTS.
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING PLAINTIFF'S MOTION TO ENLARGE TIME TO FILE AMENDED COMPLAINT AND DENYING MOTION TO DISMISS AS MOOT
On September 21, 2009 U.S. Bank N.A., as trustee on behalf of Defendant named as Credit Suisse First Boston Mortgage Securities Corporation ("Credit Suisse") filed a Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim upon Which Relief Can Be Granted and/or for a More Definite Statement ("Credit Suisse's Motion") pursuant to Federal Rule of Civil Procedure 12(b)(6) and (e). On October 26, 2009, a week before Credit Suisse's Motion was set for a hearing, Plaintiffs filed a Motion for Leave to Enlarge Time to Plead First Amended Complaint. Because Plaintiffs did not comply with the Civil Local Rules pertaining to motions (see Notice of Document Discrepancies and Order Thereon signed Oct. 27, 2009) and in the interests of justice, the court construes their motion as an ex parte application seeking an extension of time to file the first amended complaint.
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 for a more definite statement 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). In the procedural posture of this case, Plaintiffs may file their first amended complaint without leave of court. See id.
It appears that Plaintiffs requested enlargement of time out of an abundance of caution. Plaintiffs will not be ready to file the first amended complaint until December 2, 2009. According to Plaintiffs' counsel's affidavit, a serious ailment has prevented him from work and necessitated him to hire additional counsel to take over his case load. For good cause shown pursuant to Federal Rule of Civil Procedure 6(b), Plaintiffs' request for enlargement of time is GRANTED.
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 A district court may treat as moot a pending motion to dismiss a superseded pleading. See William W. Schwarzer et al., Fed. Civ. Proc. Before Trial ¶ 9:262 (2009). As Plaintiffs intend to file an amended complaint, Credit Suisse's Motion is DENIED AS MOOT.
For the foregoing reasons, it is hereby further ORDERED:
1. No later than December 2, 2009 Plaintiffs shall file their first amended complaint. In the first amended complaint, Plaintiffs shall address the issues raised in Credit Suisse's Motion.
2. Credit Suisse shall file a response to the first amended complaint within the time provided in Rule 15(a)(3).
IT IS SO ORDERED.
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