Opinion
No. CV 06-0952-PHX-MHM.
September 11, 2006
ORDER
Currently before the Court is Plaintiff Herbert Knauss' ("Plaintiff") Motion to add Balogh Becker Ltd., Jason A. Lannone, and Stephanie A. Johnson (Dkt.#9) and Plaintiff's Motion to Amend to add Count V (Dkt.#11). After reviewing the pleadings the Court issues the following Order.
I. Background
On April 4, 2006, Plaintiff filed the instant suit against the above captioned Defendants asserting four counts arising out of the Fair Debt Collections Practices Act, 15 U.S.C. 1692 et seq. (Dkt.#1). On April 7, 2006, Defendant Bank of America was served with process and on May 9, 2006, Bank of America filed its Motion to dismiss. (Dkt.#8). On May 10, 2006, Plaintiff filed his instant Motion to add Defendants Balogh Becker Ltd., Jason A. Lannone and Stephanie A. Johnson (Dkt.#9) and on May 16, 2006, Plaintiff filed his Motion to Amend to add Count V, which is a Fourth Amendment violation claim. (Dkt.#11).
II. Analysis
Plaintiff has moved this Court for permission to amend his original Complaint. Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure a party has a right to amend the complaint "once as a matter of course at any time before a responsive pleading is served." Moreover, a motion to dismiss is not a responsive pleading within the meaning of Rule 15(a). Breier v. N. Cal. Bowling Proprietors' Assn', 316 F.2d 787, 789 (9th Cir. 1963). Thus, given that Bank of America, the only Defendant served with process, has filed a motion to dismiss rather than a responsive pleading, Plaintiff is entitled to amend his complaint once as a matter of course. See Id. (holding that "[n]either the filing nor granting of a [motion to dismiss] before answer terminates the right to amend . . . and a motion for leave to amend (though unnecessary) must be granted if filed.").
However, Plaintiff's means of amending the original Complaint is procedurally improper. Specifically, Rule 15.1 of the Local Rules of Civil Procedure for the District of Arizona requires that any amended complaint demonstrate the ways in which it differs from the pleading in which it amends, by bracketing through the text to be deleted and underlying the text to be added. Here; however, Plaintiff appears to have attached only that portion of his proposed amended complaint that would supplement or add to the original Complaint. Such a means for amending is procedurally improper. Plaintiff should take note that an amended complaint supersedes entirely the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as nonexistent. Ferdik, 963 F.2d at 1262. Thus, claims alleged in an original complaint which are not alleged in an amended complaint are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). As such, the Court will not accept Plaintiff's attempt to amend his original Complaint by simply adding Balogh Becker Ltd., Jason A. Lannone and Stephanie A. Johnson as Defendants as well as simply adding Count V to Plaintiff's original Complaint. Thus, if Plaintiff intends to assert a claim against these new parties and/or assert a new claim, Plaintiff is required to set forth such claims in one amended complaint encompassing all of his claims rather than merely providing supplements to his original Complaint. Thus, until Plaintiff files a proper amended complaint, the Court will review only Plaintiff's original Complaint filed on April 4, 2006. (Dkt.#1).
Accordingly,
IT IS HEREBY ORDERED granting in part and denying in part Plaintiff's Motion to add Balogh Becker Ltd., Jason A. Lannone, and Stephanie A. Johnson (Dkt.#9) and Plaintiff's Motion to Amend to add Count V (Dkt.#11). Plaintiff's Motions are granted in part in that the Court confirms that Plaintiff can amend his Complaint once as a matter of course before any responsive pleading is filed. Plaintiff's Motions to amend are denied in part in that Plaintiff has improperly attempted to add Balogh Becker Ltd., Jason A. Lannore and Stephanie Johnson and to assert Count V. As such, currently only Plaintiff's original Complaint is viable.
IT IS FURTHER ORDERED that as a result of Plaintiff's flawed attempt to add Count V to his original Complaint, the Court will deny without prejudice Defendant Bank of America's Motion to Dismiss Plaintiff's Proposed Count V with permission to refile should the Plaintiff properly amend his Complaint to assert this claim again. (Dkt.#14).