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MacGregor v. Dial

United States District Court, E.D. California

March 27, 2014

KEVIN ANTHONY MacGREGOR, Plaintiff,
v.
DR. DIAL, et al., Defendants.

ORDER & FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Plaintiff has filed a second motion for extension of time, ECF No. 37, to file and serve a response to defendants' February 6, 2014 motion to dismiss the original complaint. ECF No. 30. The motion is based in part on the ground that plaintiff failed to exhaust administrative remedies pursuant to non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure. ECF No. 30. Plaintiff filed a first amended complaint on February 27, 2014. ECF No. 34. Thereafter, defendants on March 12, 2014, filed a motion to dismiss the first amended complaint. ECF No. 36.

Under Fed.R.Civ.P. 15(a)(1)(B): "A party may amend its pleading once as a matter of course within... 21 days after service of a motion under Rule 12(b), (e), or (f)...." Therefore, plaintiff timely filed the first amended complaint as a matter of course. The court finds that the first amended complaint supersedes the original complaint. See Lacey v. Maricopa County , 693 F.3d 896, 927 (9th Cir. 2012) ("the general rule is that an amended complaint super[s]edes the original complaint and renders it without legal effect....") Accordingly, the February 6, 2014 motion to dismiss the original complaint has been rendered moot. Although plaintiff's present request for extension of time is directed by its terms to that motion, it has been correctly construed and docketed as a motion for extension of time to oppose the more recent motion to dismiss the first amended complaint. As such, the request is granted.

Also before the court is plaintiff's amended motion to stay proceedings in this action (ECF No. 21), which was filed prior to issuance of the Findings and Recommendations (ECF No. 22) recommending denial of his original motion to stay (ECF No. 14). For the reasons set forth in the previous Findings and Recommendations (ECF No. 22), and on the grounds that plaintiff's amended motion is duplicative, the court recommends denial of the amended motion to stay.

Accordingly, IT IS ORDERED that:

1. Plaintiff's first amended complaint, ECF No. 34, supersedes the original complaint and is now the operative pleading upon which the case proceeds;

2. The February 6, 2014 motion to dismiss the original complaint (ECF No. 30) is hereby vacated as moot;

3. Plaintiff's request for an extension of time (ECF No. 37) is granted;

4. Plaintiff shall file his opposition to the March 12, 2014 motion to dismiss (ECF No. 36) no later than April 21, 2014.

IT IS HEREBY RECOMMENDED that plaintiff's amended motion to stay (ECF No. 21) be denied for the reasons set forth in the previously issued Findings and Recommendations (ECF No. 22) and because the amended motion is duplicative of the original motion to stay (ECF No. 14).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. ยง 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).


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