Rodriguez v. Zenni Optical, Inc.

[8] 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA [11] 12 REBEKAH RODRIGUEZ, individually Case No.: 23-cv-00821-H-KSC and on behalf of all others similarly [13] situated, ORDER DENYING DEFENDANT’S 14 MOTION TO DISMISS AS MOOT Plaintiff, [15] v. [Doc. No. 3.] [16] ZENNI OPTICAL, INC., a California 17 corporation; and DOES 1 through 10, inclusive, [18] Defendants. [19] 20 On May 11, 2023, Defendant Zenni Optical, Inc. filed a motion to dismiss Plaintiff’s 21 complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. 22 (Doc. No. 3.) On May 22, 2023, in lieu of filing an opposition to the motion to dismiss, 23 Plaintiff Rebekah Rodriguez filed a first amended complaint. (Doc. No. 6.) See Fed. R. 24 Civ. P. 15(a)(1)(B); Sanford v. Motts, 258 F. 3d 1117, 1120 (9th Cir. 2001) (“Fed. R. Civ. 25 P. 15 (a) gives a plaintiff one opportunity to amend as of right.”). In light of Plaintiff’s 26 amended pleading, the Court denies as moot Defendant’s motion to dismiss Plaintiff’s 27 complaint without prejudice to Defendant moving to dismiss the first amended complaint. 28 See Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“It is well1 ||established in our circuit that an ‘amended complaint supersedes the original, the latter 2 ||being treated thereafter as non-existent.’ . . . Consequently, the Plaintiff's Second 3 Amended Complaint superseded the First Amended Complaint, and the First Amended 4 ||Complaint ceased to exist. Because the Defendants’ motion to dismiss targeted the 5 || Plaintiff's First Amended Complaint, which was no longer in effect, we conclude that the 6 motion to dismiss should have been deemed moot... .” (citations omitted)). 7 IT IS SO ORDERED. 8 || DATED: May 22, 2023 | | | l | | | 9 MARILYN W. HUFF, Distri ge 10 UNITED STATES DISTRICT COURT 1]