UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
April 18, 2012
LA JOLLA COVE INVESTORS, INC. A CALIFORNIA CORPORATION, PLAINTIFF,
GOCONNECT LIMITED, AN AUSTRALIAN CORPORATION, AND DOES 1--10, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge
ORDER RE JOINT MOTION RE COUNTERCLAIM OF GOCONNECT LIMITED (ECF No. 42)
Presently before the Court is the parties' joint motion re counterclaim of GoConnect Limited ("GoConnect"). (Jt. Mot., ECF No. 42) On October 27, 2011, GoConnect filed an answer to La Jolla Cove Investors, Inc.'s ("La Jolla Cove") original complaint, and also asserted a counterclaim. (ECF No. 11) Subsequently, La Jolla Cove filed an amended complaint, (ECF No. 23), which GoConnect answered on January 27, 2012. (ECF No. 27) GoConnect did not, however, refile its counterclaim. Accordingly, the parties have now requested that the Court "[i]ssue an order confirming that the Counter-Claim filed on October 27, 2011 by GoConnect . . . is the operative Counter-Claim and has not been superseded by any subsequent pleading." (Jt. Mot. 2, ECF No. 42)
As the parties are well aware, an amended pleading "supersedes the original, the latter being treated thereafter as nonexistent." Loux v. Rhay, 375 F.2d 55, 75 (9th Cir. 1987). And so, here, GoConnect's answer to La Jolla Cove's amended complaint superseded the answer and counterclaim asserted in response to the original complaint. See 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1476 (3d ed. 2010) ("[W]hen the complaint is amended defendant should be entitled to amend the answer to meet the contents of the new complaint and, if this is done, any admissions in the initial responsive pleading will be superseded by the amended answer.").
Notwithstanding the above, because the parties agree that GoConnect's October 27, 2011, counterclaim was not intended to be superseded by its subsequent answer to the amended complaint, the Court will permit GoConnect to file an amended answer and counterclaim in response to the amended complaint. GoConnect SHALL FILE its amended answer and counterclaim (attached as Exhibit A to the instant motion) within seven days of the date this Order is electronically docketed.
IT IS SO ORDERED.
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