(PS) Nelson Rogers v. Enjalran

Opinion

MARY A. NELSON ROGERS, No. 2:19-cv-01564-TLN-CKD (PS) Plaintiff, v. ORDER PAUL J. ENJALRAN, et al., (ECF Nos. 11, 15, 16, 17) Defendants. Presently pending before the court are defendants’ motions to dismiss. (ECF Nos. 11, 15, 16.) Nine days after the first motion to dismiss was filed, plaintiff filed a motion to amend her complaint and filed a first amended complaint. (ECF Nos. 17, 18.) Federal Rule of Civil Procedure 15(a) allows for a complaint to be amended “once as a matter of course within . . . 21 days after service of a motion under Rule 12(b).” This amendment as a matter of course renders an original complaint non-existent. Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“[W]hen a plaintiff files an amended complaint, the amended complaint supersedes the original, the latter being treated thereafter as non-existent.”). Because plaintiff’s original complaint has been superseded by the first amended complaint, defendants’ motions to dismiss the original complaint are denied as moot. Accordingly, the hearing scheduled on defendants’ motions for January 8, 2020, is vacated. Additionally, it appears that plaintiff is attempting to dismiss the parties who filed motions to dismiss in this matter—Tim Marriott, Dave Roughton, Donna Allred, and K. Knight—as they are no longer named in plaintiffs first amended complaint. (Compare ECF No. 1 at 2-7 with 18 at 2-4.) Plaintiff also does not name the Secretary of Treasury or the Postmaster General in her amended complaint. (See ECF No. 18.) Accordingly, plaintiff is to file with the court, within 21 days of this order, a declaration as to why the defendants not named in her amended complaint should not be dismissed from this action. In the alternative, plaintiff is to file a motion with this court requesting dismissal of the defendants not named in her amended complaint. Accordingly, IT IS HEREBY ORDERED that: 1. Defendants’ pending motions to dismiss (ECF Nos. 11, 15, 16) are DENIED as moot; ll 2. The hearing on defendants’ motions scheduled for January 8, 2020, is VACATED; 3. In the court’s discretion and for the sake of clarity, plaintiffs motion to file an amended complaint (ECF No. 17) is GRANTED and the first amended complaint (ECF No. 18) is the now-operative complaint; and 4. Within 21 days of this order plaintiff shall file a response to this order explaining why the unnamed defendants should not be dismissed, or, in the alternative, affirm that she is requesting their dismissal under Federal Rule of Civil Procedure 41. Dated: December 17, 2019 bh rdf /f { CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE jr. 1564. rogers