Opinion
2:11-CV-1374 JCM (CWH).
October 19, 2011
ORDER
Presently before the court is defendants Walldesign, Inc. and Michael Bello's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on September 21, 2011. (Doc. #7). Plaintiffs Juan Pablo Orquiza and Mazimino Buenaventura did not file an opposition to the motion to dismiss, but instead filed an amended complaint on October 7, 2011.
"A party may amend its 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." Fed.R.Civ.P. 15(a)(1)(B).
The original complaint in this matter was filed August 25, 2011. As a complaint, a response was required. Thus, plaintiffs had 21 days after being served with the response to amend their complaint as a matter of right. See Fed.R.Civ.P. 15(a). Defendants filed their motion to dismiss (pursuant to Rule 12(b)) on September 21, 2011. Plaintiffs amendment was filed on October 7, 2011, within the 21 day period set forth by Rule 15(a)(1)(B). As such, defendants' motion to dismiss is moot, because it seeks to dismiss a complaint that has been supplanted by the filing of a first amended complaint.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that defendant's motion to dismiss (doc. #7) be, and the same hereby is, DENIED AS MOOT.