Tarkett v. USAA General Indemnity Company

• Court: District Court, S.D. California
• Decided: November 30, 2023
• Docket: 3:23-cv-01724
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH TARKETT, individually and Case No.: 3:23-cv-01724-H-BLM on behalf of all others similarly situated, 12 ORDER DENYING DEFENDANT’S Plaintiff, 13 MOTION TO DISMISS AS MOOT v. 14 [Doc. No. 12.] USAA GENERAL INDEMNITY 15 COMPANY, a Texas Corporation, 16 Defendant. 17 18 On September 18, 2023, Plaintiff Joseph Tarkett (“Plaintiff”) filed a putative class 19 action complaint against Defendant USAA General Indemnity Company (“Defendant”), 20 alleging claims for: (1) breach of contract and the implied covenant of good faith and fair 21 dealing; (2) violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code 22 § 17200, et seq.; (3) breach of fiduciary duty; (4) conversion; (5) declaratory relief; and 23 (6) unjust enrichment. (Doc. No. 1.) 24 On November 6, 2023, Defendant filed a motion to dismiss Plaintiff’s complaint 25 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. No. 12.) On 26 November 27, 2023, in lieu of filing an opposition to the motion to dismiss, Plaintiff filed 27 a first amended complaint. (Doc. No. 13.) See Fed. R. Civ. P. 15(a)(1)(B); see Sanford v. 28 Motts, 258 F.3d 1117, 1120 (9th Cir. 2001) (“Fed. R. Civ. P. 15(a) gives a plaintiff one 1 ||opportunity to amend as of right.”). In light of Plaintiff's amended pleading, the Court 2 ||denies as moot Defendant’s motion to dismiss the complaint without prejudice to 3 || Defendant moving to dismiss the first amended complaint. See Ramirez v. Cty. of San 4 || Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“It is well-established in our circuit that 5 ‘amended complaint supersedes the original, the latter being treated thereafter as non- 6 || existent.’ . . . Consequently, the Plaintiff's Second Amended Complaint superseded the 7 || First Amended Complaint, and the First Amended Complaint ceased to exist. Because the 8 || Defendants’ motion to dismiss targeted the Plaintiff's First Amended Complaint, which 9 || was no longer in effect, we conclude that the motion to dismiss should have been deemed 10 ||moot....” (citations omitted)). 1] IT IS SO ORDERED. 12 || DATED: November 30, 2023 | | |. J 13 MARILYN ®. HUFF, Distri ge 14 UNITED STATES DISTRICT COURT 15 16 17 18 19 20 21 22 23 24 25 26 27 28