UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 30, 2010
RAFAEL VALTIERRA, PLAINTIFF,
WELLS FARGO BANK, N.A., SUCCESSOR IN INTEREST TO WACHOVIA AND DOES 1 THROUGH 50, INCLUSIVE, DOCS. 4 AND 5 DEFENDANTS.
ORDER DENYING MOTIONS DUE TO FILING OF NEW AMENDED COMPLAINT
In this case, Defendant Wells Fargo Bank, N.A. has filed a motion to dismiss for failure to state a claim and a motion to strike portions of the complaint. Subsequently, Plaintiff Rafael Valtierra filed an amended complaint on June 21, 2010. 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. Proc. 15(a)(1)(A). "A motion to dismiss is not a 'responsive pleading' within the meaning of Rule 15." Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). 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).
Defendant has not filed an answer. As no prior amended complaints have been filed, Plaintiff is entitled to file the amended complaint as a matter of course under Rule 15(a). Since Defendant's motions seek dismissal and/or striking of the original and now "non-existent" complaint, Defendant's motions are moot.
Accordingly, IT IS HEREBY ORDERED that Defendant's motion to dismiss and motion to strike are DENIED as moot.
IT IS SO ORDERED.
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