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Richard F. Tulak et al v. Bank of America

August 12, 2011

RICHARD F. TULAK ET AL.,
PLAINTIFF,
v.
BANK OF AMERICA, N.A. ET AL., DEFENDANTS.



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

ORDER DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT

On August 5, 2011 Defendants filed a motion to dismiss the complaint. On the same day, Plaintiff filed the first amended complaint. The amended complaint was timely filed pursuant to Federal Rule of Civil Procedure 15(a).

An amended complaint supersedes a prior complaint as a pleading. Forsyth v. Humana, , 114 F.3d 1467, 1474 (9th Cir. 1997), aff'd on other grounds, Humana, Inc. v. Forsyth, 525 U.S. 299 (1999). A district court may treat as moot a pending motion to dismiss a superseded pleading.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 (2011). Accordingly, Defendants' motion to dismiss is DENIED WITHOUT PREJUDICE.

It is further ORDERED that Defendants shall file a response to the amended complaint, if any, within the time provided in Rule 15(a)(3).

The hearing on Defendants' motion to dismiss, currently set on this court's calendar for October 17, 2011, is VACATED.

IT IS SO ORDERED.

COPY TO: HON. WILLIAM McCURINE, Jr. UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL

20110812

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