Opinion
CV 11-02107-PHX-FJM
12-01-2011
Kristy Joy Bylas, Plaintiff, v. United States of America, Defendant.
ORDER
The court has before it defendant's motion to dismiss (doc. 5) and plaintiff's response (doc. 8). Defendant did not file a reply, and the time for replying has expired.
This case arises from injuries to plaintiff's hand resulting from a necrotizing infection. Plaintiff alleges that the care she received from the San Carlos Indian Health Service Hospital in San Carlos, Arizona constituted medical malpractice. Defendant filed a motion to dismiss on October 26, 2011, arguing that the complaint should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. for failure to state a claim. Alternatively, defendant argues that the complaint must be dismissed for failure to file a certifying statement whether expert opinion testimony is necessary as required by Arizona law. Plaintiff has since filed the certificate (doc. 9).
On November 18, 2011, plaintiff filed her first amended complaint (doc. 10). A party may amend its pleading once as a matter of course within twenty-one days after service of a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1)(B). An amended complaint supercedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Because plaintiff's amendment was timely, this action is now proceeding under the first amended complaint and defendant's motion to dismiss is rendered moot.
IT IS ORDERED DENYING defendant's motion to dismiss on grounds of mootness (doc. 5).
Frederick J. Martone
United States District Judge