Singer v. Waters Esq

• Court: District Court, E.D. California
• Decided: June 23, 2025
• Docket: 1:25-cv-00532
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 PAUL SINGER, Case No. 1:25-cv-00532-KES-SAB

12 Plaintiff, ORDER DIRECTING THE CLERK OF THE COURT TO FILE PLAINTIFF’S FIRST 13 v. AMENDED COMPLAINT

14 CRAIG C.O. WATERS, ESQ., et al., ORDER REQUIRING DEFENDANTS TO EITHER FILE A NOTICE OF WITHDRAWAL 15 Defendants. OF MOTIONS TO DISMISS AND STRIKE OR FILE A NOTICE INFORMING COURT WHY 16 THE MOTIONS ARE NOT MOOT

17 (ECF Nos. 10, 11, 12, 19)

18 FIVE DAY DEADLINE

19 20 On May 6, 2025, Plaintiff, who is proceeding pro se, commenced this action. (ECF 21 No. 1.) On June 9, 2025, Defendants filed two motions to dismiss (ECF Nos. 10, 12) and 22 Defendant Craig C.O. Waters, Esq., additionally filed an accompanying motion to strike. (ECF 23 No. 11.) The pending motions are referred to the undersigned for the preparation of findings and 24 recommendations. (ECF No. 13.) On June 23, 2024, Plaintiff filed a first amended complaint in 25 addition to oppositions to the motions to dismiss and strike. (ECF Nos. 15, 16, 19.) 26 Under Rule 15(a)(1)(B), “[a] party may amend its pleading once as a matter of course: . . . 27 (B) if the pleading is one to which a responsive pleading is required . . . 21 days after service of a 28 motion under Rule 12(b), (e), or (f) . . . .” Fed. R. Civ. P. 15(a)(1)(B). “[A]n amended complaint 1 supersedes the original, the latter being treated thereafter as non-existent” and as no longer 2 performing any function in the case. Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 3 (9th Cir. 2015); see also Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 4 (9th Cir. 1989). 5 Preliminarily, the Court notes that Plaintiff filed two oppositions and two requests for 6 judicial notice in addition to his first amended complaint. (ECF Nos. 14-19.) Given Plaintiff’s 7 pro se status, and his explanation that the “First Amended Complaint . . . cures any pleading 8 deficiencies . . .,” the Court will construe Plaintiff’s efforts as the filing of a first amended 9 complaint—within 21 days of Defendants filing their Rule 12(b) motions—and will direct the 10 Clerk of the Court to file the first amended complaint.1 However, the Court emphasizes to 11 Plaintiff that the Federal Rules of Civil Procedures allow for amending a complaint “once as a 12 matter of course.” In other words, Plaintiff may not simply file a second amended complaint in 13 opposition to any future motion to dismiss by Defendants. Rather, Plaintiff will need to move the 14 Court for leave to amend or obtain a stipulation from Defendants. Fed. R. Civ. P. 15(a)(2). 15 In light of the foregoing, the first amended complaint has therefore become the operative 16 complaint in this action. The original complaint—the subject of the pending motions to dismiss 17 and strike—is now non-existent and performs no function in this case. See Ramirez, 806 F.3d at 18 1008. Because Defendants’ 12(b) motions are attacking a non-existent complaint, the motions are 19 ordinarily denied as moot. See e.g., id.; J.M. through McWilliams v. Tulare City Sch. Dist., No. 20 1:21-cv-1766-AWI-EPG, 2022 WL 1489481, at *1 (E.D. Cal. May 11, 2022); Ruffa v. S. 21 California Edison Co., No. 1:22-cv-01556-ADA-BAM, 2023 WL 2143399, at *1 (E.D. Cal. Feb. 22 21, 2023). Therefore, the Court will require Defendants to file notices informing the Court why 23 its pending motions are not moot or, alternatively, file notices to withdraw their motions to 24 dismiss and strike. 25 / / / 26 / / / 27 / / /

28 1 Upon its receipt, the Clerk lodged the first amended complaint. (ECF No. 19.) 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court is DIRECTED to file the first amended complaint 3 (ECF No. 19); 4 2. Defendants are DIRECTED to file notices informing the Court why the 5 pending motions to dismiss and strike (ECF Nos. 10, 11, 12) are not moot 6 or, alternatively, file notices to withdraw their motions to dismiss and strike 7 within five (5) days of the date of this order; and 8 2. Failure to comply with this order will result in the Court’s recommendation 9 to the District Judge that the subject motions be denied as moot. 10 i IT IS SO ORDERED. FA. ee 12 | Dated: _ June 23, 2025 STANLEY A. BOONE 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28