Kimball v. County of San Diego

• Court: District Court, S.D. California
• Decided: June 10, 2024
• Docket: 3:24-cv-00682
• Status: Unknown

Opinion

I 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || ZACK KIMBALL, Case No. 24-cv-0682-BAS-VET Plaintiff, | ORDER DENYING DEFENDANTS’ 13 V. MOTION TO DISMISS AS MOOT 14 || COUNTY OF SAN DIEGO, and (ECF No. 5) 15 EMILIO CASTILLERO, 16 Defendants. 17 Under Federal Rule of Civil Procedure (“Rule”) 15(a) a plaintiff may amend a 18 || pleading once as a matter of right before the defendant serves any responsive pleading. In 19 Ninth Circuit, a motion to dismiss is not considered a responsive pleading. Doe v. 20 || United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] motion to dismiss is not a ‘responsive 21 || pleading’ within the meaning of [Rule 15(a)].”). Here, Defendant filed a motion to dismiss 22 ||(ECF No. 5), and subsequently Plaintiff filed a First Amended Complaint (ECF No. 6). 23 || Because Plaintiff filed his amended pleading before either defendant served any responsive 24 pleading, Defendants’ motion to dismiss 1s hereby DENIED as moot. (ECF No. 5.) 25 || Plaintiff's First Amended Complaint now serves as the operative complaint in this case. 26 IT IS SO ORDERED. 27 /) oF 28 || DATED: June 10, 2024 (ypillg (isha. 6 How. Cynthia Bashant _, United States District Judge