UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CALIFORNIA
April 6, 2011
DUMP TRUCK OWNERS ASSOCIATION, PLAINTIFF,
AIR RESOURCES BOARD, DEFENDANT.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
MEMORANDUM AND ORDER
Plaintiff California Dump Truck Owners Association ("Plaintiff") filed this action against California's Air Resources Board ("ARB") on February 11, 2011. Plaintiff now seeks leave to amend its Complaint to remove the ARB as Defendant and to substitute as Defendants instead two individuals in their official capacities, the ARB's Chairperson, Mary D. Nichols, and its Executive Officer, James Goldstene.*fn1
Federal Rule of Civil Procedure 15(a)(1) provides: A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
Subsection (A) applies to pleadings to which no responsive pleading is allowed. Fed. R. Civ. Pro. 15 advisory committee's notes to 2009 amendments ("[A]mended Rule 15(a)(1) extends from 20 to 21 days the period to amend a pleading to which no responsive pleading is allowed."). Subsection (B) thus applies here, and, since no responsive pleading or Rule 12 motion has been filed, Plaintiff may amend its Complaint as of right. Burriola v. Nevada, 2010 WL 4810594 *1 (Nov. 19, 2010) ("No responsive pleading has been filed, therefore, plaintiff may amend his complaint as of right."); see also William W. Schwarzer, et al., Federal Civil Procedure Before Trial, ¶ 8:1403 (The Rutter Group 2010) ("[U]nless the right has been terminated earlier for other reasons (i.e., earlier filing of a Rule 12(b) motion), plaintiff may amend the complaint once as a matter 'of course' up to 21 days after service of an answer.").
Plaintiff's Motion for Leave to File First Amended Complaint (ECF No. 8) is therefore GRANTED. Plaintiff's First Amended Complaint, submitted as Exhibit "1" to the current Motion, shall be deemed filed on the date this Order is electronically filed.
IT IS SO ORDERED.