The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE: STRIKING PLAINTIFF'S VACATING THE APRIL 4, 2011 SECOND AMENDED COMPLAINT; HEARING; SETTING BRIEFING SCHEDULE
On December 20, 2010, Plaintiff Lisa Davis filed this class action complaint alleging that Defendant Social Service Coordinators, Inc., incorrectly classified certain employees as "exempt" and denied overtime wages in violation of the Fair Labor Standards Act ("FLSA") and various provisions of California law. A first amended complaint ("FAC") was filed on January 18, 2011.
Defendant filed a motion to dismiss the FAC on February 8, 2011, arguing that the complaint lacked sufficient factual content under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
Plaintiff filed a second amended complaint ("SAC") on March 22, 2011. Plaintiffs were not granted leave to amend by the court nor did they have written consent from opposing parties per Fed. Rule Civ. Proc. 15(a)(2).
Under Fed. R. Civ. P. 15(a), a party is allowed to amend its pleading once as a matter of course within 20 days of serving the pleading, or at any time before a responsive pleading is served. After this time period, a party may amend its pleading by leave of court, and such leave "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a).
The SAC is stricken because it was a second attempt to amend filed without leave of court or party consent in violation of Fed. R. Civ. P. 15(a). After Plaintiff filed the FAC, she could no longer amend her complaint as a matter of right. The SAC was filed in violation of Rule 15(a) and is stricken from the record. See, e.g., Serpa v. SBC Telecomms., Inc., 318 F. Supp. 2d 865, 875 (N.D. Cal. 2004) (a court may strike a complaint where a plaintiff has failed to comply with Rule 15(a)).
Plaintiff is directed to file an opposition to the motion to dismiss and/or a motion for leave to amend the complaint by April 20, 2011.
Plaintiff is further reminded that an amended pleading does not necessarily moot a pending motion to dismiss:
A supersedes pleading the that pleading has been under 15(a) effect throughout action it amended and Rule the modifies remains in Once an amended pleading unless is it interposed, subsequently is original modified. pleading function the motion made any the should case and any subsequent no longer performs be an in of an amended directed the amended pleading. opposing party at by This effect when the amendment purports becomes to particularly important pleading under Rule 15(a) cure a defective pleading. For to plaintiff or adopt may file earlier example, any of a the new complaint that allegations does not refer original pleading; if the deficient superseded by first complaint is in the is points notconsidered required to dismiss the the suit amendment, the court defendants weaknesses of earlier when required pleading. On the other up the the a motion to dismiss should simply not because be an to file a new motion hand, introduced pleading the defects while raised their amended was in the motion original was may motion pending. remain If some of new in as being pleading, addressed the court to the simply amended consider the motion the otherwise would be to exalt form over substance.
pleading. To hold 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes omitted) If Plaintiff forgoes filing an opposition to the motion to dismiss, her motion to amend should explain how the amended complaint cures each of the defects asserted in the motion to dismiss.
The April 4, 2011 hearing is VACATED. No later than April 20, 2011, Plaintiff shall file an opposition to the motion to dismiss and/or a motion for leave to amend the complaint. Defendant's response is due no later than May 17, 2011.*fn1 The matter will then be set for hearing by the Court.
This Order moots the recently filed motion to strike the SAC.