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Ronald Small v. Discount Magazine Subscription Service

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 12, 2012

RONALD SMALL,
PLAINTIFF,
v.
DISCOUNT MAGAZINE SUBSCRIPTION SERVICE, INC., DEFENDANT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, who is proceeding pro se, brings this civil action.*fn1 Pending before the court are plaintiff's first and second amended complaints, filed on March 2, 2012, and March 7, 2012, respectively.

The Federal Rules of Civil Procedure provide that a party may amend his or her pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is one to which a responsive pleading is required, within 21 days after service of the responsive pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule 12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all other situations, a party's pleadings may only be amended upon leave of court or stipulation of all the parties. See Fed. R. Civ. P. 15(a)(2).

In this case, plaintiff's first amended complaint was filed within 21 days of service of defendant's motion to dismiss. Therefore, the amended complaint is filed as of right and leave of court is not necessary. Because defendant's motion to dismiss challenges the original complaint which is superceded by the amended complaint, the motion will be terminated as a pending matter on the court's docket. Defendant will be required to file a response to the first amended complaint.

As to plaintiff's second amended complaint, because that pleading was filed without first obtaining leave of court, the document will be stricken.

Accordingly, IT IS HEREBY ORDERED that:

1. This action proceeds on the first amended complaint filed as of right on March 2, 2012;

2. The Clerk of the Court is directed to terminate defendant's motion to dismiss (Doc. 6) as a pending motion;

3. Plaintiff's second amended complaint filed on March 7, 2012, is stricken; and

4. Defendant shall file a response to the first amended complaint within 30 days of the date of this order.


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