Samano v. LVNV Funding, LLC

6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA LUIS SAMANO, Case No. 1:21-cv-01692-SKO 10 Plaintiff, ORDER VACATING HEARING AND DENYING AS MOOT DEFENDANT’S 11 v. M OTION TO DISMISS 12 (Doc. 24) LVNV FUNDING, LLC, Defendant.

14 _____________________________________/ 17 On November 24, 2021, Plaintiff Luis Samano filed his complaint against Defendant LVNV Funding, LLC for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 19 1692 et seq., the Rosenthal Fair Debt Collections Act (“Rosenthal Act”), Cal. Civ. Code §§ 1788 et.

20 seq., and the California Consumer Credit Reporting Agencies Act (“CCRAA”), California Civil Code §§ 1785 et seq. (Doc. 1.) On March 21, 2022, Defendant filed a motion for judgment on the pleadings under Rules 12(b)(1) and 12(c) of the Federal Rules of Civil Procedure. (Doc. 16.) On April 19, 2022, the Court granted in part Defendant’s motion for judgment on the pleadings, dismissing without leave to amend Plaintiff’s claims under the Rosenthal Act and the CCRAA, and dismissing Plaintiff’s complaint with leave to amend Plaintiff’s Article III standing allegations and to allege conduct “in connection with the collection of any debt” pursuant to 15 U.S.C. § 1692e. 1 (Doc. 20.)

1 On May 3, 2022, Plaintiff filed a First Amended Complaint. (Doc. 23.) On May 17, 2022, Defendant filed the present motion to dismiss the First Amended Complaint. (Doc. 24.) On May 18, Plaintiff filed a Second Amended Complaint as a matter of course. See Fed. R. Civ. P. 15(a)(1)(B); Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002 (9th Cir. 2015) (“The [p]laintiff’s 15(a)(2) amendment [by either consent of opposing party or with leave of the court], filed first in time, cannot be construed as a waiver or exhaustion of his automatic right to amend under 15(a)(1), so long as that amendment was timely.”). Plaintiff’s Second Amended Complaint supersedes his First Amended Complaint, “the latter being treated thereafter as non-existent.” Ramirez, 806 F.3d 9 at 1008 (citation omitted).

10 As Defendant’s motion to dismiss is directed at the First Amended Complaint, the Court DENIES the motion to dismiss (Doc. 24) as MOOT. Defendant shall either answer the Second Amended Complaint or file a new motion, as appropriate. The hearing on the motion to dismiss, currently set for June 22, 2022, is hereby VACATED.

IT IS SO ORDERED.

16 Dated: May 20, 2022 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE