Breathe Technologies, Inc. v. New Aera, Inc.

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION BREATHE TECHNOLOGIES, INC., 8 Case No. 5:19-cv-07691-EJD Plaintiff, 9 ORDER DENYING AS MOOT v. DEFENDANTS’ MOTION TO 10 COMPEL ARBITRATION AND STAY NEW AERA, INC., et al., OR ALTERNATIVELY TRANSFER 11 AND SILVERBOW'S MOTION TO Defendants. DISMISS Re: Dkt. Nos. 25, 30 On November 21, 2019, Plaintiff Breathe Technologies, Inc. filed the original complaint in this action (the “Original Complaint”) (Dkt. No. 1). On March 10, 2020, Defendants Inogen, Inc. (“Inogen”) and Todd W. Allum filed a motion to compel arbitration of Plaintiff’s Third, Fourth, Fifth, Sixth, and Seventh Claims for Relief (“Motion to Compel”) (Dkt. No. 25). Defendant Silverbow Development, LLC (“Silverbow”) joined the Motion to Compel (Dkt. No. 32). Inogen also sought a stay pending arbitration, or alternatively a venue transfer of Plaintiff’s First Claim for Relief (Dkt. No. 25). On the same day, Silverbow filed a motion to dismiss Plaintiff’s Second Claim for Relief (“Motion to Dismiss”) (Dkt. No. 30). On March 31, 2020, Plaintiff filed an amended complaint (Dkt. No. 48) (the “Amended Complaint”).

The Amended Complaint supersedes the Original Complaint and the Original Complaint should now be treated as “non-existent.” Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Both the Motion to Compel and the Motion to Dismiss were targeted at the Original Complaint and, therefore, are rendered moot by the filing of the Amended Complaint.

27 CASE NO.: 5:19-CV-07691-EJD ORDER DENYING AS MOOT DEFENDANTS’ MOTION TO COMPEL ARBITRATION See id. (“Because the Defendants’ motion to dismiss targeted the Plaintiffs First Amended Complaint, which was no longer in effect, we conclude that the motion to dismiss should have been deemed moot”); Lemberg v. LuLaRoe, LLC, No. 17-cv-2102-AB, 2018 WL 6927836, at *3 |} (C.D. Cal. Mar. 1, 2018) (“Because [the] Motion to Compel Arbitration is targeted at a previous iteration of the Complaint in this action, [the] Motion to Compel is denied as moot.”). If || Defendants seek to dismiss or compel arbitration of claims in the Amended Complaint, Defendants should file new motions based upon the Amended Complaint.

8 The court DENIES as moot Defendants’ Motion to Compel and Motion to Dismiss.

9 IT IS SO ORDERED.

10 || Dated: April 1, 2020 11 aM.

EDWARD J. DAVILA %L United States District Judge it 18 || CASE NO.: 5:19-CV-07691-EJD ORDER DENYING AS MOOT DEFENDANTS’ MOTION TO COMPEL ARBITRATION || AND STAY OR ALTERNATIVELY TRANSFER AND SILVERBOW’S MOTION TO DISMISS