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Holli Nicewander v. American Mortgage Network

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 24, 2011

HOLLI NICEWANDER,
PLAINTIFF,
v.
AMERICAN MORTGAGE NETWORK,
DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AND DENYING AS MOOT DEFENDANTS' MOTION TO DISMISS AND EXPUNGE LIS PENDENS

On October 21, 2010 Defendants Onewest Bank, F.S.B., Federal Loan Mortgage Corporation and Mortgage Electronic Registration Systems, Inc. ("Moving Defendants") filed a motion to dismiss complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and expunge lis pendens. Plaintiff did not file an opposition. Instead, on December 14, 2010 Plaintiff filed an amended complaint. The amended complaint was stricken because it was untimely under Rule 15(a), and therefore required leave of court. On January 3, 2011 Plaintiff filed a motion for leave to amend. On January 19, 2011 the Moving Defendants filed a notice stating that they do not oppose Plaintiff's motion. Because the Moving Defendants do not oppose Plaintiff's motion, Plaintiff's motion for leave to file a first amended complaint is GRANTED. See Fed. R. Civ. Proc. 15(a)(2).

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 A district court may treat as moot a pending motion to dismiss a superseded pleading.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 (2010). Accordingly, the Moving Defendants' motion to dismiss is DENIED WITHOUT PREJUDICE as moot.

Based on the foregoing, it is hereby ORDERED as follows:

1. Plaintiff's Motion for Leave to File a First Amended Complaint is GRANTED. No later than February 7, 2011 Plaintiff shall file and serve the first amended complaint. In the first amended complaint, Plaintiff shall address the issues raised in the Moving Defendants' motion to dismiss.

2. The pending motion to dismiss and expunge lis pendens is DENIED WITHOUT PREJUDICE as moot.

3. The Moving Defendants shall file a response to the amended complaint within the time provided in Rule 15(a)(3). If Plaintiff fails to timely file the amended complaint, the Moving Defendants may renew their motion to dismiss and expunge lis pendens by filing and serving it no later than February 21, 2011.

4. The hearing date on Plaintiff's motion set on this court's calendar for February 7, 2011 is hereby VACATED.

IT IS SO ORDERED.

20110124

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