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United States of America and State of v. University of Phoenix and Apollo Group

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 15, 2011

UNITED STATES OF AMERICA AND STATE OF CALIFORNIA, EX REL. DEREK HOGGETT AND TAVIS GOOD, PLAINTIFFS,
v.
UNIVERSITY OF PHOENIX AND APOLLO GROUP, INC., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Presently before the Court is a Motion to Dismiss ("Motion") (ECF No. 12) filed July 12, 2011, by Defendants University of Phoenix and Apollo Group, Inc. (together "Defendants"). On August 5, 2011, Relators Derek Hoggett and Tavis Good (together "Relators") filed a First Amended Complaint (ECF No. 21) and an Opposition to Defendants' Motion (ECF No. 22). By way of their Opposition, Relators opine that they have amended their original Complaint as of right, apparently intending that their superseding pleading render Defendants' pending Motion moot.

The time in which Relators were permitted to amend their Complaint as of right expired, however, on August 2, 2011. Fed. R. Civ. Pro. 15(a) ("A party may amend its pleading once as a matter of course within...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."). Accordingly, Relators' First Amended Complaint is stricken without prejudice to refiling upon either: 1) the order of this Court issued in response to a properly noticed motion for leave to amend; or 2) the stipulation of the parties. To permit Plaintiff time to either properly amend the Complaint or to substantively oppose Defendants' Motion, the hearing on Defendants' Motion to Dismiss is hereby continued to Tuesday, September 6, 2011, at 2:00 p.m. in Courtroom 7. Any opposition to that Motion is to be filed not later than Tuesday, August 23, 2011, and any reply is to be filed not later than Tuesday, August 30, 2011.

IT IS SO ORDERED.

20110815

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