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United States of America Ex Rel. Hope Capriola v. Brightstar Education Group

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


August 28, 2012

UNITED STATES OF AMERICA EX REL. HOPE CAPRIOLA, AMBER MASON, NADIA YAMASHITA, NANCY UPTON, SONIA MACIAS, AND AUBREY PRIEST,
PLAINTIFF,
v.
BRIGHTSTAR EDUCATION GROUP, INC., A DELAWARE CORPORATION, INSTITUTE OF TECHNOLOGY, INC, A DELAWARE CORPORATION, AND DOES 1 THROUGH 50, INCLUSIVE,
DEFENDANTS.

ORDER ON DEFENDANTS' MOTION TO DISMISS AND ORDER VACATING SEPTEMBER 10, 2012 HEARING DATE (Doc. No. 31)

On July 27, 2012, the Defendants filed a motion to dismiss. See Doc. No. 31. On August 28, 2012, the Magistrate Judge signed a stipulation between the parties. See Doc. No. 38. The stipulation permits Plaintiffs to file a second amended complaint and gives Defendants until September 27, 2012, to file some form of response. See id. The stipulation included as Exhibit A the proposed second amended complaint. The stipulation provides that the second amended complaint will become the operative complaint. In light of the signed stipulation, the second amended complaint, which is Doc. No. 37-1 in the docket, is now the operative complaint.

An "amended complaint supersedes the original, the latter being treated thereafter as nonexistent." Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Here, the amended complaint supersedes the prior complaint, and the prior complaint is treated as non-existent. Since the Defendants' motion to dismiss attacks a now "non-existent" complaint, Defendants' motion to dismiss is moot. Because the motion to dismiss is now moot, the Court will vacate the hearing and deny the motion.

Accordingly, IT IS HEREBY ORDERED that:

1. The September 10, 2012, hearing date on Defendants' motion to dismiss is VACATED; and

2. Defendants' motion to dismiss (Doc. No. 31) is DENIED as moot. IT IS SO ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE

20120828

© 1992-2012 VersusLaw Inc.



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