IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 16, 2013
M.A. MORTENSON COMPANY, AND
ORDER VACATING APRIL 22, 2013 HEARING AND DENYING MOTION TO DISMISS (Doc. No. 9)
Currently pending before the Court is Defendant's motion to dismiss. The motion is set to be heard on April 22, 2013. The motion to dismiss was filed on March 15, 2013. However, on April 5, 2013, Plaintiff filed an amended complaint.
Federal Rule of Civil Procedure 15 governs amended pleadings. In pertinent part, Rule 15(a) reads: "A party may amend its pleading once as a matter of course within . . ., if the pleading is one to which a response pleading is required, 21 days after service of the responsive pleading or 21 days after service of a motion under Rule 12(b) . . . ." Fed. R. Civ. P. 15(a)(1)(B). Amendments made within the time limits of Rule 15(a)(1) as a matter of course do not require leave of court. See Reeves v. Fed. Bureau of Prisons, 885 F.Supp.2d 384, 388 n.4 (D. D.C. 2012); cf. Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). A properly filed "amended complaint supersedes the original [complaint], the latter being treated thereafter as non-existent." Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
Here, Plaintiff's amended complaint is timely under Rule 15(a)(1)(B) since it was filed within 21 days of the motion to dismiss. Defendants' motion now attacks a complaint that is no longer operative. Therefore, Defendants' motion to dismiss will be denied as moot. See Forsyth, 114 F.3d at 1474; Loux, 375 F.2d at 57.
Accordingly, IT IS HEREBY ORDERED that:
1. The April 22, 2013, hearing on Defendants' motion is VACATED;
2. Defendants' motion to dismiss is DENIED as MOOT; and
3. Defendants may file an answer or other responsive motion or pleading to the First Amended Complaint within twenty (20) days of service of this order.
IT IS SO ORDERED.
SENIOR DISTRICT JUDGE
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