Free Order on Motion to Dismiss - District Court of California - California

Case 3:08-cv-00051-L-CAB

Document 11

Filed 04/04/2008

Page 1 of 2

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JIM COLLINS et al., 11 12 v. 13 WINEX INVESTMENTS, LLC, et al., 14 15 16 Currently pending before the court are Defendants' motion to dismiss pursuant to Federal Defendants, _________________________________ Plaintiffs, ) ) ) ) ) ) ) ) ) ) Civil No. 08cv51-L(CAB) ORDER DENYING AS MOOT DEFENDANTS' MOTION TO DISMISS

17 Rule of Civil Procedure 12(b)(6) and motion to strike pursuant to Rule 12(f) . On April 3, 2008, 18 Plaintiffs filed an amended complaint. "A party may amend its pleading once as a matter of 19 course [] before being served with a responsive pleading. Fed. R. Civ. Proc. 15(a)(1). "A 20 motion to dismiss for failure to state a claim is not a responsive pleading." Allwaste, Inc. v. 21 Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995). Plaintiff therefore had a right to file an amended 22 complaint without leave to court. See id. An amended complaint supersedes a prior complaint 23 as a pleading. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Hal Roach 24 Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). Therefore, where a 25 plaintiff elects to file an amended complaint, a district court may treat an existing motion to 26 dismiss as moot. Defendants' motions to dismiss and to strike are DENIED AS MOOT. This 27 / / / / / 28 / / / / /
08cv51

Case 3:08-cv-00051-L-CAB

Document 11

Filed 04/04/2008

Page 2 of 2

1 order is WITHOUT PREJUDICE to Defendants moving to dismiss or strike Plaintiffs' 2 amended complaint. 3 4 5 DATED: April 4, 2008 6 7 COPY TO: 8 HON. CATHY ANN BENCIVENGO 9 UNITED STATES MAGISTRATE JUDGE 10 ALL PARTIES/COUNSEL 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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08cv51

IT IS SO ORDERED.

M. James Lorenz United States District Court Judge