Opinion
24-cv-0682-BAS-VET
06-10-2024
ZACK KIMBALL, Plaintiff, v. COUNTY OF SAN DIEGO, and EMILIO CASTILLERO, Defendants.
ORDER DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT (ECF NO. 5)
HON. CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
Under Federal Rule of Civil Procedure (“Rule”) 15(a) a plaintiff may amend a pleading once as a matter of right before the defendant serves any responsive pleading. In the Ninth Circuit, a motion to dismiss is not considered a responsive pleading. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] motion to dismiss is not a ‘responsive pleading' within the meaning of [Rule 15(a)].”). Here, Defendant filed a motion to dismiss (ECF No. 5), and subsequently Plaintiff filed a First Amended Complaint (ECF No. 6). Because Plaintiff filed his amended pleading before either defendant served any responsive pleading, Defendants' motion to dismiss is hereby DENIED as moot. (ECF No. 5.) Plaintiff's First Amended Complaint now serves as the operative complaint in this case.
IT IS SO ORDERED.