Bellone v. Roaring Camp, Inc.

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION CHUCK BELLONE, Case No.19-cv-00307-VKD 9 Plaintiff, ORDER RE DEFENDANTS’ MOTION 10 v. TO DISMISS 11 GADABOUT TOURS, INC., et al., Re: Dkt. No. 25 Defendants.

13 Following the stipulated dismissal of defendant Roaring Camp, Inc. pursuant to Federal Rule of Civil Procedure 41(a)(1), plaintiff Chuck Bellone served the first amended complaint and summons on defendants Gadabout Tours, Inc., Lois Anderson, and Mark Anderson (collectively, “the Gadabout defendants”). Dkt. Nos. 19, 20, 21, 22. The Gadabout defendants moved to dismiss the first amended complaint on September 4, 2019. Dkt. No. 25. On September 9, 2019, plaintiff Chuck Bellone filed a second amended complaint as a matter of course pursuant to Rule 15(a)(1)(B). Dkt. No. 29.

20 A plaintiff may amend its pleading once as a matter of course within 21 days of service of a motion under Rule 12(b). Fed. R. Civ. P. 15(a).1 An amended pleading generally supersedes an original pleading. Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.3d 1542, 1546 (9th Cir. 1989). Because the Gadabout defendants were not named as defendants until the first amended complaint, and they responded to that pleading by filing a motion to dismiss pursuant to Rule 12(b)(6), Mr. Bellone’s second amended complaint appears to have been filed as a matter of right within the time to amend permitted under Rule 15(a)(1)(B). See Boyd v. Santa Cruz Cty., No. 15-cv-00405-BLF, 2015 WL 3465837, at *4 (N.D. Cal. June 1, 2015) (citing Williams v. Bd.

2 of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007)).

3 Accordingly, the Court denies defendants’ motion to dismiss (Dkt. No. 25) as moot, and || VACATES the hearing scheduled for October 15, 2019. Defendants’ deadline to respond to the second amended complaint is September 24, 2019. Fed. R. Civ. P. 15(a)(3).

6 IT IS SO ORDERED.

7 Dated: September 10, 2019 . 28 □ VIRGINIA K. DEMARCHI 10 United States Magistrate Judge

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