Opinion
CASE NO. C19-385-RSM-BAT
05-16-2019
JOHN SAMUEL FERRARI RIVERA, Petitioner, v. BRYAN S WILCOX, et al., Respondents.
ORDER DENYING MOTION TO DISMISS AS MOOT
This is a 28 U.S.C. § 2241 immigration habeas action. The Government filed a motion to dismiss on April 17, 2019. Dkt. 8. On May 7, 2019, petitioner timely filed an amended petition pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). "It is well-established in our circuit that an amended complaint supersedes the original, the latter being treated thereafter as non-existent." Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (internal quotation and citation omitted). Because the Government's motion to dismiss targeted petitioner's original petition, which is no longer in effect, the Court DENIES as moot the Government's motion to dismiss. See id. (holding that district court should have denied as moot motion to dismiss after amended complaint was filed); Acosta v. Wellfleet Comms., LLC, No. 16-2353, 2017 WL 4079261, at *2 n.2 (D. Nev. Sept. 14, 2017) (denying as moot motion to dismiss after granting plaintiff leave to file an amended complaint); Arevalo v. Castro, No. 15-407, 2016 WL 7116006, at *1 (D. Nev. Dec. 6, 2016) (same).
"A party may amend its pleading once as a matter of course within: . . . if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1)(B) (emphasis added). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). --------
Within 21 days of the date of this Order, the Government shall file a return and memorandum that addresses petitioner's amended habeas petition and motion to stay. The Government shall note its return for consideration on the fourth Friday after it is filed. Petitioner may file a response not later than the Monday immediately preceding the noting date, and the Government may file a reply not later than the noting date.
The Clerk shall send copies of this Order to the parties and to the Honorable Brian A. Tsuchida.
DATED this 16th day of May 2019.
/s/_________
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE