Opinion
No. C 15-1963 MMC
06-30-2015
TROY BACKUS, on behalf of himself and all others similarly situated, Plaintiff, v. NESTLE USA INC., Defendant.
ORDER DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE; VACATING HEARING
Before the Court are defendant's "Motion to Dismiss the Complaint" pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and "Motion to Strike Portions of the Complaint" under Rule 12(f), both filed June 5, 2015. On June 26, 2015, plaintiff filed a First Amended Complaint ("FAC").
A party may amend a pleading "once as a matter of course within . . . 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." See Fed. R. Civ. P. 15(a). "[A]n amended pleading supersedes the original, the latter being treated thereafter as non-existent." Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956), cert. denied, 353 U.S. 947 (1957).
In the instant case, plaintiff filed his FAC within 21 days after service of defendant's motions, and, consequently, was entitled to amend as of right. See Fed. R. Civ. P. 15(a).
Accordingly, the Court hereby DENIES as moot defendant's motions, and VACATES the July 31, 2015 hearing scheduled thereon.
IT IS SO ORDERED. Dated: June 30, 2015
/s/_________
MAXINE M. CHESNEY
United States District Judge