J.M. v. Tulare City School District

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA J.M., a minor through his guardian ad liem CASE NO. 1:21-CV-1766 AWI EPG Farrah McWilliams, Plaintiffs ORDER VACATING MAY 16, 2022 10 HEARING AND ORDER ON v. DEFENDANTS’ MOTION TO DISMISS TULARE CITY SCHOOL DISTRICT, 12 (Doc. No. 13) Defendant

Currently pending before the Court is a Rule 12(b)(6) motion to dismiss by Defendant.

Hearing on this motion is set for May 16, 2022.

Background On December 14, 2021, Plaintiff filed his complaint.

On April 8, 2022, Defendant filed a Rule 12(b)(6) motion to dismiss.

On April 26, 2022, Plaintiff filed his First Amended Complaint (“FAC”).

On May 10, 2022, Defendant filed an answer to the FAC.

Discussion Under Rule 15(a)(1)(B), “A party may amend its pleading once as a matter of course: . . . (B) if the pleading is one to which a responsive pleading is required . . . 21 days after service of a motion under Rule 12(b), (e), or (f) . . . .” This rule confers upon a party a right to amend, the only limitations being those found within Rule 15(a)(1) itself. Ramirez v. County of San Bernardino, 806 F.3d 1002, 1007-08 (9th Cir. 2015). Some courts have used the term “absolute right” in describing a party’s ability to amend under Rule 15(a)(1). E.g. In re Alfes, 709 F.3d 631, |639 (6th Cir. 2013); Galustian v. Peter, 591 F.3d 724, 730 (4th Cir. 2010); James Hurson Assocs., |Inc. v. Glickman, 229 F.3d 277, 282-83 (D.C. Cir. 2000). “[A]n amended complaint supersedes | the original, the latter being treated thereafter as non-existent” and as no longer performing any |function in the case. Ramirez, 806 F.3d at 1008; see also Hal Roach Studios, Inc. v. Richard | Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989).

7 Here, Plaintiff filed his FAC within twenty-one days from the date Defendant filed its Rule | 12(b)(6) motion. Therefore, the FAC was timely under Rule 15(a)(1)(B). Because the FAC was |timely filed, the FAC is the operative complaint, and the original complaint is now non-existent 10 performs no function in this case. See id. Because Defendants’ Rule 12(b)(6) motion is | attacking a now non-existent complaint, the Rule 12(b)(6) motion is moot. See Ramirez, 806 F.3d 12 1008; Hal Roach Studios, 896 F.2d at 1546.

14 ORDER 15 Accordingly, IT IS HEREBY ORDERED that: | 1. Defendant’s Rule 12(b)(6) motion to dismiss (Doc. No. 13) is DENIED as moot; and 17 The May 16, 2022, hearing on Defendants’ now moot Rule 12(b)(6) motion is VACATED.

19 IT IS SO ORDERED.

99 | Dated: _May 11, 2022 —. 7 Zz : Z Cb Led — SENIOR DISTRICT JUDGE