UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 9, 2010
PHL VARIABLE INSURANCE CO., PLAINTIFF,
THE ABRAMS FAMILY IRREVOCABLE LIFE INSURANCE TRUST, DEFENDANT.
The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO DISMISS AS MOOT
Defendant filed a motion to dismiss the Complaint for failure to plead fraud with particularity and for failure to plead the elements of negligent misrepresentation [Doc. 5]. Since Defendant filed its motion, Plaintiff filed an opposition to the motion and an Amended Complaint. Plaintiff did not seek leave of the Court to file the Amended Complaint, believing that leave was unnecessary because Defendant had not filed a responsive pleading.*fn1 Although Federal Rule of Civil Procedure permits one amendment without leave, that is only the case when a plaintiff amends within twenty-one days after service of a motion to dismiss. See Fed. R. Civ. P. 15(a)(1)(B). Plaintiff tried to amend its Complaint past the twenty-one day deadline.*fn2
Still, rather than strike the Amended Complaint from the docket and direct Plaintiff to ask for leave, the Court construes Plaintiff's response in opposition to the motion to dismiss as a request for leave to amend. The Court GRANTS the request for leave to amend and gives Defendant twenty-one days from the filing of this order to respond to the Amended Complaint. The Court DENIES the motion to dismiss as moot [Doc. 5].
The Court advises Plaintiff to comply with the federal and local rules in the future.
IT IS SO ORDERED.