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Feria v. Lehman Brothers Bank

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 2, 2010

LESLIE LEXANN FERIA, PLAINTIFF,
v.
LEHMAN BROTHERS BANK, FSB, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER RE: DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT

[Doc. No. 2]

On or about May 25, 2010, Plaintiff Leslie Lexann Feria filed a civil action in the Superior Court of the State of California, San Diego County, against Defendants Aurora Bank FSB (f.k.a. Lehman Brothers Bank FSB), Cal-Western Reconveyance Corp., and Aurora Loan Services LLC (erroneously sued as Aurora Loan Service). On July 6, 2010, Defendants removed the state court action to the Southern District of California. [Doc. No. 1.] Thereafter, on July 13, Defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. [Doc. No. 2.] On August 2, instead of filing an opposition to the pending motion to dismiss, Plaintiff filed an amended complaint. [Doc. No. 4.]

Under Federal Rule of Civil Procedure 15(a)(1)(B), "[a] party may amend its pleading once as a matter of course within:... 21 days after service of a motion under Rule 12(b), (e), or (f)..." Plaintiff's amended pleading supercedes the original complaint; the original pleading no longer serves any function. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Thus, the complaint which Defendants move to dismiss is no longer the operative pleading in this action. Because Defendants' motion seeks dismissal of a complaint that is no longer the operative pleading in this case, the motion has become moot.

Accordingly, IT IS HEREBY ORDERED THAT:

1. Defendants' motion to dismiss [Doc. No. 2] is DENIED AS MOOT and the hearing currently set for August 24, 2010 is VACATED;

2. Defendants shall file a response to Plaintiff's amended complaint pursuant to the Federal Rules of Civil Procedure.

IT IS SO ORDERED.

20100802

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