Fitzgerald v. GEM Funding, LLC

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION MICHAEL SCOTT FITZGERALD, Case No. 5:21-cv-08641-EJD 9 Plaintiff, ORDER DENYING MOTIONS TO DISMISS AND MOTION TO SEVER AS 10 v. MOOT 11 GEM FUNDING, LLC, et al., Re: Dkt. Nos. 64, 65, 69, 70, 75 Defendants.

13 Before the Court are Defendants EBF Holdings, LLC, White Road Capital, LLC, IBEX Funding Group, LLC, and GEM Funding, LLC’s motions to dismiss Plaintiff Michael Fitzgerald’s complaint under Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(1), and 12(b)(6), as well as EBF Holdings’ motion to sever. Dkt. Nos. 64, 65, 69, 70, 75. Pursuant to Civil Local Rule 7-3(a), Fitzgerald’s responses to those motions were due on January 20, 21, and 26, 2022, but he did not file any opposition briefs by those deadlines. On January 28, 2022, in lieu of filing oppositions to Defendants’ motions and before Defendants filed responsive pleadings to the original complaint, Fitzgerald filed an amended complaint. Dkt. No. 88.

21 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).

1 A Rule 12 motion is not a “responsive pleading.” See CRST Van Expedited, Inc. v. Werner Enters., Inc., 479 F.3d 1099, 1104 n.3 (9th Cir. 2007).

1 Accordingly, the Court DENIES Defendants’ motions to dismiss and motion to sever as || moot. Although Fitzgerald did not file his amended complaint within 21 days of EBF Holdings’ motion to dismiss (which was filed on January 6, 2022), the Court will grant Fitzgerald a one-time || extension of that deadline owing to his pro se status. Fitzgerald should familiarize himself with the deadlines set out in the Civil Local Rules and the Federal Rules of Civil Procedure, as the || Court expects him to comply with those deadlines in all future submissions or seek extensions of deadlines before those deadlines pass.”

8 Should Defendants wish to file new motions challenging the amended complaint, they may || retain their currently reserved hearing date of June 9, 2022.

10 IT IS SO ORDERED.

11 Dated: January 28, 2022

EDWARD J. DAVILA 14 United States District Judge Q 16 = 17 Z 18 23 > The Court encourages Fitzgerald to seek out the assistance of the Federal Pro Se Program, which offers free legal information for pro se litigants. While the Program does not provide legal 24 representation, a licensed attorney may assist Fitzgerald in responding to Defendants’ motions in a timely manner. The Program’s phone number is (408) 297-1480. More information on the Program is 25 available on the Court’s website at https://cand.uscourts.gov/helpcentersj. Fitzgerald may also wish to consult a manual the Court has adopted to assist pro se litigants in presenting their case. An online version of the manual, as well as other free information for pro se litigants, is available on the Court’s 27 website at https://cand.uscourts.gov/pro-se.

28 || Case No.: 5:21-cv-08641-EJD ORDER DENYING MOTS. TO DISMISS AND MOT. TO SEVER AS MOOT