(PS) Osborne v. Tracy Police Dept

Opinion

MICHELLE OSBORNE, No. 2:20–cv–1805–JAM–KJN (PS) Plaintiff, ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AS MOOT v. (ECF Nos. 4, 8) TRACY POLICE DEPARTMENT, et al., Defendants. Plaintiff filed an action in California state court, and on September 8, 2020, defendants removed to this court. (ECF No. 1.) The same day, defendants filed a motion to dismiss and set it for an October 15, 2020 hearing. (ECF No. 4.) On September 22, plaintiff filed a first amended complaint. (ECF No. 8.) 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 null, thereby mooting defendants’ motion to dismiss. 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.”); see also TI, Ltd. v. Grupo Vidanta, 2019 WL 5556127, at *1 (S.D. Cal. Oct. 28, 2019) (“[Defendant’s] Motion to Dismiss the Complaint became moot once the Amended Complaint was filed.”); Bhatti v. Goldman, 2014 WL 5089381, at *1 (C.D. Cal. wOASe 2 OVE LOUSY EAINTTING IN RAUCH tA PO ee OY OO

Oct. 9, 2014) (same); Rector v. Capital One Bank (USA), N.A., 2014 WL 12570878, at *1 (E.D. Cal. May 30, 2014) (same); Krieger v. Atheros Comme'ns, Inc.,2011 WL 2550831, at *1 (N.D. Cal. June 25, 2011) (same). Thus, the court denies defendants’ motion to dismiss (ECF No. 4.) as moot. Plaintiff is advised that defendants may file another 12(b) motion, should they so choose, or may proceed with an answer to the first amended complaint. Accordingly, IT IS HEREBY ORDERED that: 1. Defendant’s pending motion to dismiss (ECF No. 4) is DENIED WITHOUT PREJUDICE as moot; and 2. The hearing on defendant’s motion to dismiss is VACATED. Dated: September 24, 2020 Fensbl A Abar UNITED STATES MAGISTRATE JUDGE osbo.1805