FILED 7 4 soi SHEN ORTRICT OF CALFORNA BY

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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |) ANTON A. EWING, Case No.: 3:22-cv-0114-BEN-DEB a ORDER DENYING 13 || V- 1) DEFENDANT’S MOTION TO SERGE Wee TOs Tehce, 2) PLAINTIRS MOTION TO 15 Defendant. STRIKE [ECF No. 10, 13] 17 18 Before this Court are Plaintiffs Motion to Strike and Defendant’s Motion to 19 ||Dismiss (ECF No. 13). For the reasons discussed below, Defendant’s Motion to Dismiss 20 ||is DENIED as moot and Plaintiff's Motion to Strike is DENIED. 21 I. Motion to Dismiss On January 28, 2022, Plaintiff filed a Complaint in this Court alleging violations, 23 || inter alia, of the Telephone Consumer Protection Act. ECF No. 1. On March 4, 2022, 24 || Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 13. 25 March 23, 2022, while the motion to dismiss was pending, Plaintiff filed an Amended 26 ||Complaint as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1)(B). ECF No. 17. 27 A party may amend its pleading once as a matter of course within 21 days of 28 || service of a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1)(B). When an amended

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1 ||complaint is filed, it “supersedes the original, the latter being treated thereafter as non- 2 ||existent.” Forsyth v. Humana, Inc.,

(9th Cir. 1997) (citation 3 |lomitted), overruled on other grounds by Lacey v. Maricopa Cty.,

(9th 4 ||Cir. 2012). Where a motion to dismiss targets a complaint that has been superseded by 5 ||an amended complaint, the court should deem the motion to dismiss moot. Ramirez v. 6 || Cty. of San Bernardino,

(9th Cir. 2015). Here, Defendant’s motion 7 ||to dismiss targeted Plaintiff's initial Complaint, which was superseded on March 23, 2022 8 || by the Amended Complaint. ECF No. 17. Accordingly, Defendant’s motion to dismiss is 9 || DENIED as moot. This Court will address Defendant’s renewed motion to dismiss the 10 || first amended complaint in a separate order. 1) Il. MOTION TO STRIKE Plaintiff fails to meet the standard set forth in Local Rule 83.3(g) demonstrating 13 || why an ex parte motion was necessary. Further, Plaintiff's objection to the attachment of 14 || emails to Defendant’s application is without merit. The correspondence between the 15 || parties was the basis of the motion. It would be impossible for the Court to rule on the 16 ||matter without having the attached messages for context. “It should go without saying, 17 || but such rules are inapplicable when the letters attached are the basis for the motion 18 || being made.” Anton Ewing v. Empire Capital Funding Group, Inc., No. 3:17-cv-2507- 19 || LAB-MDD, (S.D. Cal. Mar. 26, 2019) (Burns, J.). Accordingly, Plaintiff's ex parte 20 |}motion to strike is DENIED. 2) IT IS SO ORDERED. ne 22 Dated: April 11, 2022

23 “ROGER T. BENITEZ United States District Judge 24 25 26

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