Opinion
No. CIV. S-05-2617 WBS JFM.
August 18, 2006
MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND MOTION TO AMEND THIRD-PARTY COMPLAINT
On October 31, 2003, plaintiff Clifford Denney suffered numerous injuries to his face and lower back following a multiple-vehicle accident on Interstate 80. (Defs.' Notice of Removal Ex. A.) Denney filed suit against defendants Trans West Logistics Systems ("Trans West") and Stanislas Tramoy in the Superior Court of California in and for the County of Nevada to recover compensation for his resulting medical expenses and other damages. (Id. ¶¶ 1-2.)
Defendants removed the case to this court on December 23, 2005 and sought leave of the court to join additional parties on May 26, 2006. The court granted this request and defendants accordingly filed their third-party complaint, which seeks indemnification and/or contribution from third-party defendants Lee Sparks, Behrens Moving, Inc., Allied Van Lines, Inc., Andrez J. Rembowski, Krzystztof D. Durma; Mervin Lee Heuseveldt, Albertson's, Inc., Dean Cameron Efhen, Western Material Supply, Danny Shane King, Jr., and Stephen Ray Schultz.
However, the parties named in the caption of the third-party complaint do not match the parties identified in the text. In particular, Behrens Moving, Inc. was included in the caption but not in the body. Behrens thus moves to dismiss the complaint as to it, arguing that the third-party plaintiffs have failed to state a claim against it.
Reacting to Behrens' motion, the third-party plaintiffs have filed a motion to amend their complaint in which they address Behrens' concern by adding allegations against this defendant to the body of the complaint. They have also added Dean Cameron Efhen, Western Material Supply, Danny Shane King, Jr., and Stephen Ray Schultz to the caption of the complaint (previously these parties were only mentioned in the text). Finally, they have removed third-party defendant Ryder Truck from the body of the complaint. Plaintiffs attribute any discrepancies between the caption and the body of the complaint to an "inadvertent error" and now move to amend.
I. Motion to Amend the Complaint
Rule 15 empowers the parties to agree to amendments and alternatively directs the court to freely grant leave to amend "when justice so requires." Fed.R.Civ.P. 15(a). Leave should be allowed if amendment can save the complaint unless there has been undue delay, amendment is sought in bad faith, or amendment would result in prejudice to the opposing party. Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1446 (9th Cir. 1990). "[T]his policy is to be applied with extreme liberality."Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); Breier v. N. Cal. Bowling Proprietors' Ass'n, 316 F.2d 787, 790 (9th Cir. 1963) ("Leave to amend should be allowed unless the complaint `cannot under any conceivable state of facts be amended to state a claim.'" (quoting Alexander v. P. Mar. Ass'n, 314 F.2d 690 (9th Cir. 1963))).
The court has not yet issued a scheduling order in this matter specifically because the parties requested an August 4, 2006 deadline for joinder of additional parties. Third-party plaintiffs filed this motion on July 14, 2006. Given these relevant dates, and the fact that these proceedings are clearly still in the initial stages, the third-party defendants cannot seriously accuse the third-party plaintiffs of undue delay or bad faith. Nor are there any grounds to argue that amendment would significantly prejudice defendants in any way. The third-party plaintiffs' motion to amend will therefore be granted.
II. Motion to Dismiss
Typically, an amended complaint moots all pending motions.Datastorm Techs., Inc. v. Excalibur Commc'ns, Inc., 888 F. Supp. 112, 114 (N.D. Cal. 1995) ("A complaint that has been amended pursuant to Fed.R.Civ.P. 15(a) supersedes the pleading it modifies, rendering the original pleading void." (citing Loux v. Rhay, 375 F.2d 55 (9th Cir. 1967)). Moreover, although "the [c]ourt may exercise its discretion to consider a motion to dismiss the original complaint where the amended complaint fails to cure the defects of the original complaint", this approach is not warranted in this case. Fitzgerald v. State, No. Civ. 96-2077, 1997 WL 579193, at *3 (D. Ariz. July 9, 1997). Behrens' motion to dismiss only argued that the third-party plaintiffs' failure to include Behrens in the body of the complaint amounted to failure to state a claim. The amended complaint remedies this problem and thus moots Behrens' motion.
IT IS THEREFORE ORDERED that third-party plaintiffs' motion to amend be, and the same hereby is, GRANTED. Third-party plaintiffs have twenty (20) days from the date of this Order to file a First Amended Third-Party Complaint consistent with this Order.
IT IS FURTHER ORDERED that third-party defendant Behrens Moving Co.'s motion to dismiss be, and the same hereby is, DENIED.