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Kingsburg Apple Packers Inc. v. Ballantine Produce Co.

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


October 8, 2010

KINGSBURG APPLE PACKERS INC. D/B/A KINGSBURG ORCHARDS, ET. AL. PLAINTIFFS,
v.
BALLANTINE PRODUCE CO., INC., ET. AL., DEFENDANTS.
WAGON WHEEL FARMS, INC., A CALIFORNIA CORPORATION, INTERVENOR PLAINTIFF,
v.
BALLANTINE PRODUCE CO., INC. ET. AL. DEFENDANTS.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS WAGON WHEEL'S COMPLAINT AS MOOT

(Doc. No. 205)

On August 6, 2010, Defendants Ballantine, David Albertson, Eric Albertson, Richard Graham, Redwood Farms, and Babijuice's (collectively "Defendants") filed a motion to dismiss Plaintiff Wagon Wheel Farms, Inc.'s ("Wagon Wheel") Second-Amended Complaint, which was filed on July 20, 2010. On July 30, 2010, however, Wagon Wheel filed a Third-Amended Complaint.*fn1 Wagon Wheel filed its Third-Amended Complaint in response to the Court's July 16, 2010 Order, which allowed Wagon Wheel to file an amended complaint on or by July 30, 2010. The Third-Amended Complaint supersedes the original complaint, and the original complaint is treated as non-existent. 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); see also Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Since Defendants' motion attacks Wagon Wheel's Second-Amended Complaint and now "non-existent" complaint, Defendants' motion is now moot.

Accordingly, IT IS HEREBY ORDERED that Defendants' motion to dismiss, which is Document Number 205 on the Court's docket, is DENIED as moot.

IT IS SO ORDERED.


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