Kimball v. County of San Diego

I 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA || ZACK KIMBALL, Case No. 24-cv-0682-BAS-VET Plaintiff, | ORDER DENYING DEFENDANTS’ 13 V. MOTION TO DISMISS AS MOOT || COUNTY OF SAN DIEGO, and (ECF No. 5) 15 EMILIO CASTILLERO, 16 Defendants.

17 Under Federal Rule of Civil Procedure (“Rule”) 15(a) a plaintiff may amend a || pleading once as a matter of right before the defendant serves any responsive pleading. In 19 Ninth Circuit, a motion to dismiss is not considered a responsive pleading. Doe v. || United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] motion to dismiss is not a ‘responsive || pleading’ within the meaning of [Rule 15(a)].”). Here, Defendant filed a motion to dismiss ||(ECF No. 5), and subsequently Plaintiff filed a First Amended Complaint (ECF No. 6).

23 || Because Plaintiff filed his amended pleading before either defendant served any responsive 24 pleading, Defendants’ motion to dismiss 1s hereby DENIED as moot. (ECF No. 5.)

25 || Plaintiff's First Amended Complaint now serves as the operative complaint in this case.

26 IT IS SO ORDERED.

27 /) oF || DATED: June 10, 2024 (ypillg (isha. 6 How. Cynthia Bashant _, United States District Judge