J.M. v. Tulare City School District

[4] 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA [7] 8 J.M., a minor through his guardian ad liem CASE NO. 1:21-CV-1766 AWI EPG Farrah McWilliams, [9] Plaintiffs ORDER VACATING MAY 16, 2022 10 HEARING AND ORDER ON v. DEFENDANTS’ MOTION TO DISMISS [11] TULARE CITY SCHOOL DISTRICT, 12 (Doc. No. 13) Defendant [15] Currently pending before the Court is a Rule 12(b)(6) motion to dismiss by Defendant. [16] Hearing on this motion is set for May 16, 2022. [17] Background [18] On December 14, 2021, Plaintiff filed his complaint. [19] On April 8, 2022, Defendant filed a Rule 12(b)(6) motion to dismiss. [20] On April 26, 2022, Plaintiff filed his First Amended Complaint (“FAC”). [21] On May 10, 2022, Defendant filed an answer to the FAC. [22] Discussion [23] Under Rule 15(a)(1)(B), “A party may amend its pleading once as a matter of course: . . . [24] (B) if the pleading is one to which a responsive pleading is required . . . 21 days after service of a [25] motion under Rule 12(b), (e), or (f) . . . .” This rule confers upon a party a right to amend, the [26] only limitations being those found within Rule 15(a)(1) itself. Ramirez v. County of San [27] Bernardino, 806 F.3d 1002, 1007-08 (9th Cir. 2015). Some courts have used the term “absolute [28] 1 right” in describing a party’s ability to amend under Rule 15(a)(1). E.g. In re Alfes, 709 F.3d 631 , 2 |639 (6th Cir. 2013); Galustian v. Peter, 591 F.3d 724, 730 (4th Cir. 2010); James Hurson Assocs., 3 |Inc. v. Glickman, 229 F.3d 277, 282-83 (D.C. Cir. 2000). “[A]n amended complaint supersedes 4 | the original, the latter being treated thereafter as non-existent” and as no longer performing any 5 |function in the case. Ramirez, 806 F.3d at 1008 ; see also Hal Roach Studios, Inc. v. Richard 6 | Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989). 7 Here, Plaintiff filed his FAC within twenty-one days from the date Defendant filed its Rule 8 | 12(b)(6) motion. Therefore, the FAC was timely under Rule 15(a)(1)(B). Because the FAC was 9 |timely filed, the FAC is the operative complaint, and the original complaint is now non-existent 10 performs no function in this case. See id. Because Defendants’ Rule 12(b)(6) motion is 11 | attacking a now non-existent complaint, the Rule 12(b)(6) motion is moot. See Ramirez, 806 F.3d 12 1008 ; Hal Roach Studios, 896 F.2d at 1546 . [13] 14 ORDER 15 Accordingly, IT IS HEREBY ORDERED that: 16 | 1. Defendant’s Rule 12(b)(6) motion to dismiss (Doc. No. 13) is DENIED as moot; and 17 The May 16, 2022, hearing on Defendants’ now moot Rule 12(b)(6) motion is VACATED. [18] 19 IT IS SO ORDERED. 99 | Dated: _May 11, 2022 —. 7 Zz : Z Cb Led — SENIOR DISTRICT JUDGE