1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PRECISION TOXICOLOGY, LLC, ) Case No.: 3:20-cv-02135-BEN-RBB doing business as PRECISION ) 12 DIAGNOSTICS, ) ORDER DENYING MOTION TO 13 ) DISMISS AS MOOT Plaintiff, ) 14 v. ) [ECF No. 18] 15 ) STEPHANIE CERNI CRONE, an ) 16 individual, and ELEVATE ) TOXICOLOGY, INC., a Colorado 17 ) corporation, ) 18 Defendant. ) 19 I. INTRODUCTION 20 21 Plaintiff Precision Toxicology, LLC d/b/a Precision Diagnostics (“Plaintiff”) 22 brings this action against its former employee, Defendant Stephanie Cerni Crone (“Ms. 23 Crone”), and her newly formed company, Defendant Elevate Toxicology, Inc. (“Elevate”) 24 (collectively, “Defendants”) for, inter alia, breach of Ms. Crone’s employment agreement 25 as well as intentional interference Plaintiff’s business interests. ECF No. 1. 26 Before the Court is Plaintiff’s Motion to Dismiss Ms. Crone’s Verified 27 Counterclaim. See ECF No. 18. After considering the papers submitted, supporting 28 documentation, and applicable law, the Court DENIES Plaintiff’s motion as moot. 1 II. BACKGROUND 2 A. Statement of Facts 3 On or around September 24, 2014, Ms. Crone executed an employment agreement 4 with Plaintiff (“Employment Agreement”) whereby Precision agreed to hire Ms. Crone as 5 its sales representative in the Colorado region. ECF No. 1 at 4:5-8. Plaintiff alleges that 6 Ms. Crone breached this Employment Agreement by, inter alia, “engaging in direct and 7 indirect solicitation of Precision’s customers and employees in blatant breach of her legal 8 and contractual obligations to Precision.” Id. at 2:6-9. Plaintiff avers that during her 9 employment with Plaintiff, Ms. Crone breached her Employment Agreement as well as 10 her duty of loyalty to Plaintiff “by (1) forming Elevate as a directly competing business in 11 the same industry as Precision, (2) soliciting Precision employees to join Elevate, 12 including the successful solicitation of a key Precision employee to follow her to Elevate,” 13 and (3) poaching Plaintiff’s “most profitable client in the Denver, Colorado area—a client 14 that generated over $2 million in annual revenue.” Id. at 2:9-16. Ms. Crone alleges in her 15 counterclaim that Plaintiff’s employees sexually harassed, discriminated against, and 16 retaliated against her. ECF No. 20. 17 B. Procedural History 18 On October 30, 2020, Plaintiff filed suit, alleging seven claims for relief for (1) 19 breach of contract; (2) breach of the duty of loyalty; (3) breach of the implied covenant 20 of good faith and fair dealing; (4) intentional interference with prospective economic 21 advantage; (5) negligent interference with prospective economic advantage; (6) 22 intentional interference with contractual relations; and (7) unfair competition in violation 23 of California Business & Professionals Code, section 17200, et seq. ECF No. 1. 24 On November 8, 2020, Ms. Crone was personally served with the complaint. ECF 25 No. 7. On November 13, 2020, Defendant Elevate Toxicology, Inc., a Colorado 26 corporation, was served with the complaint. ECF No. 4. 27 On November 23, 2020, Ms. Crone filed an Answer to Plaintiff’s Complaint. ECF 28 No. 12. That same day, Elevate filed its own Answer to the Complaint. ECF No. 11. | On December 21, 2020, Defendant also filed a verified counterclaim for (1) sexual 2 harassment; (2) sexual assault; (3) breach of the implied covenant of good faith and fair 3 dealing; (4) hostile work environment; (5) constructive termination; (6) undue influence; 4 and (7) unsafe work conditions. ECF No. 15. 5 On January 11, 2021, Plaintiff filed a Motion to Dismiss the Counterclaim. ECF 6 17. Shortly thereafter, on January 25, 2021, pursuant to Rule 15(a)(1)(B), Defendant 7 filed an amended counterclaim. ECF No. 20. As such, that same day, Defendant also 8 Il filed an opposition to Plaintiff's motion, arguing the Court should deny Plaintiff's motion ? |! to dismiss as moot in light of the amended counterclaim. ECF No. 19. 10 || II. DISCUSSION I] “Tt is well-established in our circuit that an ‘amended complaint supersedes the 12 original, the latter being treated thereafter as non-existent.’” Ramirez v. Cty. of San 13 || Bernardino,

(9th Cir. 2015) (reversing the district court’s granting 14 the defendants’ motion to dismiss the superseded first amended complaint and the 15 resulting dismissal of the case because the timely filed second amended complaint mooted 16 || the motion to dismiss targeted at Plaintiff’s first amended complaint, which was no longer 17 || in effect). “TA]|n issue 1s moot when deciding it would have no effect within the confines 18 || of the case itself.” Tur v. YouTube, Inc.,

(9th Cir. 2009). Here, 19 |) Plaintiffs Motion to Dismiss sought to dismiss Ms. Crone’s original counterclaim, ECF 20 15, which is no longer operative due to her filing of the Verified Amended 21 |) Counterclaim, ECF No. 20. Thus, granting Plaintiff’s Motion to Dismiss would have no 22 || effect within the confines of this case. 23 |IV. CONCLUSION 24 For the above reasons, the Court DENIES Plaintiffs Motion to Dismiss as moot. 25 IT IS SO ORDERED. 26 || DATED: January 29, 2021 7 HON. ROGER T. BENITE United States District Judge

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