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Areas Usa Sjc LLC v. Mission San Jose Airport LLC; and Mission Yogurt

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


December 13, 2011

AREAS USA SJC LLC, PLAINTIFF,
v.
MISSION SAN JOSE AIRPORT LLC; AND MISSION YOGURT, INC.,
DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed December 13, 2011 **

NOT FOR CITATION

ORDER (1) DENYING AS MOOT PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIMS AND (2) DENYING AS MOOT PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES [Re: Docket No. 22, 23]

Plaintiff Areas USA SJC LLC ("Areas") sued Mission San Jose Airport LLC and Mission Yogurt, Inc. (collectively "Mission" or "defendants") alleging breach of a subcontract entered by 19 and between the parties for the development and operation of a concession stand in the Norman J. 20 Mineta San Jose International Airport. Dkt. No. 1 ("Complaint").

Mission answered the complaint 21 and counterclaimed for fraud in the inducement and intentional misrepresentation. Dkt. No. 11 22 ("Answer"). Areas now moves to dismiss Mission's counterclaims and to strike Mission's 23 affirmative defenses. Dkt. Nos. 22, 23. Rather than filing opposition briefs to the motions, 24 defendants filed an 25 Amended Answer on December 6, 2011, 21 days after plaintiff filed its motions. Dkt. No. 27. 26

A party may amend its pleading once as a matter of course within 21 days after service of a 27 motion under Fed. R. Civ. P. 12(b). Fed. R. Civ. P. 15(a)(1)(B). As the Amended Answer was 28 timely filed, it is now the operative responsive pleading by defendants. Therefore, the plaintiff's motions to dismiss and to strike are DENIED as MOOT. The hearing currently set for December 13, 2 2011 is VACATED.

IT IS SO ORDERED.

C11-04487 HRL Notice will be electronically mailed to:

Karen Leeann Bohmholdt bohmholdtk@gtlaw.com Scott Donald Bertzyk bertzyks@gtlaw.com 3 Denise Michelle Mayo mayod@gtlaw.com Daniel Thomas Rockey daniel.rockey@hro.com 4 2 Counsel are responsible for distributing copies of this document to co-counsel who have not 5 registered for e-filing under the court's CM/ECF program.

20111213

© 1992-2011 VersusLaw Inc.



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