Thomas v. Nationwide Insurance Company

Opinion

ETHEL THOMAS, et al., CASE NO. 1:22-CV-1525 AWI BAM

Plaintiffs ORDER VACATING JANUARY 30, 2023 v. HEARING AND ORDER ON DEFENDANTS’ MOTION TO DISMISS COMPANT, et al., (Doc. No. 9) Defendants

Currently pending before the Court is a Rule 12(b)(6) motion to dismiss by Defendant Nationwide Mutual Insurance Company (“Nationwide”). Hearing on this motion is set for January 30, 2023. Background On November 23, 2022, Nationwide removed this case from the Fresno County Superior Court. On December 28, 2022, Defendant filed a Rule 12(b)(6) motion to dismiss. On January 13, 2023, Plaintiffs filed their First Amended Complaint (“FAC”). Discussion Under Rule 15(a), “A party may amend its pleading once as a matter of course within: . . . (B) if the pleading is one to which a responsive pleading is required . . . 21 days after service of a motion under Rule 12(b), (e), or (f) . . . .” Fed. R. Civ. P. 15(a)(1)(B). This rule confers upon a party a right to amend, the only limitations being those found within Rule 15(a)(1) itself. Ramirez v. County of San Bernardino, 806 F.3d 1002, 1007-08 (9th Cir. 2015). The Ninth Circuit has used the term “absolute right” in describing a party’s ability to amend under Rule 15(a)(1). See Rik- Mik Enters., Inc. v. Equilon Enters. LLC, 532 F.3d 963, 977 (9th Cir. 2015); Shaver v. Operating Eng’rs Local 428 Penstion Trust Fund, 332 F.3d 1198, 1201 (9th Cir. 2003); see also Ramirez, F.3d at 1007. “[A]n amended complaint supersedes the original, the latter being treated thereafter as non-existent” and as no longer performing any function in the case. Ramirez, 806 F.3d at 1008; see also Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th 1989). Here, Plaintiff filed his FAC within twenty-one days from the date Nationwide filed its 12(b)(6) motion. Therefore, the FAC was timely under Rule 15(a)(1)(B). Because the FAC was timely filed, the FAC is the operative complaint, and the original complaint is now non- existent and performs no function in this case. See id. Because Defendants’ Rule 12(b)(6) motion attacking a now non-existent complaint, the Rule 12(b)(6) motion is moot. See Ramirez, 806 F.3d at 1008; Hal Roach Studios, 896 F.2d at 1546. Accordingly, IT IS HEREBY ORDERED that: 1. Defendant’s Rule 12(b)(6) motion to dismiss (Doc. No. 13) is DENIED as moot; and The January 30, 2023, hearing on Defendant Nationwide’s now moot Rule 12(b)(6) motion is VACATED. IT IS SO ORDERED. 3) eee ~_-SENIOR DISTRICT JUDGE