Surface Art Inc v. Tesserae Technologies LLC

• Court: District Court, W.D. Washington
• Decided: December 17, 2024
• Docket: 2:24-cv-00924
• Status: Unknown

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 SURFACE ART, INC., CASE NO. 2:24-cv-00924-TL 12 Plaintiff, ORDER ON FIRST MOTION TO v. DISMISS 13 TESSERAE TECHNOLOGIES, LLC, et 14 al., 15 Defendants. 16

17 This matter is before the Court on Defendants Tesserae Technologies, LLC, and David 18 Drishpon’s Motion to Dismiss Plaintiff’s original Complaint. Dkt. No. 18 (Motion to Dismiss); 19 see Dkt. No. 1 (original Complaint). For the reasons stated below, the Court DENIES AS MOOT 20 Defendants’ motion. 21 I. BACKGROUND 22 On June 26, 2024, Plaintiff Surface Art, Inc. initiated this case by filing a complaint 23 against Defendants Tesserae Technologies, LLC; David Drishpon; Erpizo, LLC; and Does 1–50. 24 Dkt. No. 1 at 1. On September 6, 2024, Defendants Tesserae and Drishpon moved to dismiss the 1 complaint. Dkt. No. 18. On September 26, 2024, Plaintiff filed a First Amended Complaint 2 (“FAC”), adding Mark Spears as a defendant, as well as two new causes of action. Dkt. No. 21. 3 On September 27, 2024, Plaintiff erroneously re-filed the FAC in duplicate. Dkt. No. 23. Five 4 days later, on October 2, 2024, Plaintiff caught the error and submitted an “errata,” noting that

5 the duplicate FAC had been “inadvertently filed due to a clerical error.” Dkt. No. 24 at 2. 6 Plaintiff requested that the duplicate FAC be stricken. Id. On October 10, 2024, Defendants 7 Tesserae and Drishpon re-filed their Motion to Dismiss, which is presently pending before the 8 Court. Dkt. No. 27. 9 II. DISCUSSION 10 A. Original Complaint and Original Motion to Dismiss 11 Federal Rule of Civil Procedure 15(a)(1)(B) allows a plaintiff to amend a complaint once 12 as a matter of course “no later than . . . 21 days after service of a responsive pleading or 21 days 13 after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Here, Plaintiff filed 14 its FAC 20 days after Defendants Tesserae and Drishpon filed their motion to dismiss under Rule

15 12(b). Compare Dkt. No. 18, with Dkt. No. 21. Therefore, Plaintiff could file its FAC as a matter 16 of course, thus superseding and rendering inoperative its original complaint (Dkt. No. 1). See 17 Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (“[A]n amended complaint 18 supersedes the original, the latter being treated thereafter as non-existent.”). In light of the FAC, 19 Defendants Tesserae and Drishpon’s Motion to Dismiss the inoperative original complaint (Dkt. 20 No. 18) is thus moot, and the Court therefore DENIES it on that basis. See ChinaCast Educ. Corp. 21 v. Chen Zhou Guo, No. C15-5475, 2015 WL 13657741, at *1 (C.D. Cal. Nov. 12, 2015) 22 (denying as moot motion to dismiss superseded complaint). 23

24 1 || B. First Amended Complaint and Second Motion to Dismiss 2 The FAC (Dkt. No. 21) is the operative complaint in this matter. See Valadez-Lopez, 656 3 || F.3d at 857. Accordingly, Defendants Tesserae and Drishpon’s Motion to Dismiss the FAC (Dkt. 4 || No. 27) is pending before the Court. Plaintiff submitted its response on October 31, 2024 (Dkt. 5 || No. 28), and Defendants Tesserae and Drishpon filed their reply on November 7, 2024 (Dkt. No. 6 || 32). Therefore, the matter is fully briefed.! 7 Duplicate FAC and Errata 8 Plaintiff asserts that the amended complaint filed at Docket No. 23 is “wholly 9 || duplicative” of the FAC filed at Docket No. 21 and requests that it be disregarded and stricken 10 || from the docket. Dkt. No. 24 at 2. Having compared the documents with one another, the Court 11 || agrees and STRIKES the duplicate FAC from the docket. 12 Il. CONCLUSION 13 Therefore, the Court orders: 14 (1) Defendants Tesserae and Drishpon’s Motion to Dismiss (Dkt. No. 18) is 15 DENIED as moot. 16 (2) Plaintiff's duplicate First Amended Complaint (Dkt. No. 23) is STRICKEN. 17 Dated this 17th day of December 2024. 18 19 Va Ze ana Lin 20 United States District Judge 21 22 23 Defendant Erpizo LLC, which did not join the Motion to Dismiss, answered the FAC on November 7, 2024. Dkt. No. 30. Likewise, Defendant Spears, who also did not join the Motion to Dismiss, answered the FAC on November 24 || 20, 2024. Dkt. No. 33.