Salazar v. Victoria's Secret & Co.

Opinion

1 2 3 4 7 8 VIVIAN SALAZAR, Case No. 23-cv-06654-MMC

9 Plaintiff, ORDER DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS; 10 v. VACATING HEARING

12 Defendant.

13 14 Before the Court is defendant Victoria's Secret & Co.'s Motion to Dismiss, filed 15 May 8, 2024, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil 16 Procedure. On May 22, 2024, plaintiff Vivian Salazar filed a First Amended Class Action 17 Complaint ("FAC"). 18 A party may amend a pleading "once as a matter of course within . . . 21 days after 19 service of a responsive pleading or 21 days after service of a motion under Rule 12(b), 20 (e), or (f), whichever is earlier." See Fed. R. Civ. P. 15(a)(1). "[A]n amended pleading 21 supersedes the original, the latter being treated thereafter as non-existent." Bullen v. De 22 Bretteville, 239 F.2d 824, 833 (9th Cir. 1956), cert. denied, 353 U.S. 947 (1957); see also 23 Falck Northern California Corp. v. Scott Griffith Collaborative Solutions, LLC, 25 F.4th 24 763, 765 (9th Cir. 2022) (holding filing of amended complaint "renders [initial complaint] 25 without legal effect") (internal citation and quotation omitted)). 26 In the instant case, plaintiff filed her FAC within 21 days after service of the motion 27 to dismiss, and, consequently, was entitled to amend as of right. See Fed. R. Civ. P. 1 Accordingly, defendant's motion to dismiss the initial complaint is hereby DENIED 2 as moot, and the hearing scheduled for June 21, 2024, is hereby VACATED. 4 5 Dated: May 29, 2024 . INE M. CHESNEY 6 United States District Judge 7 8 9 10 11 12

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