Lang v. Strange

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA JOANNA LANG, individually and as CASE NO. 3:21-cv-05286-RJB personal representative of the Estate of Dick Lang, wife and husband and marital ORDER DENYING AS MOOT community, and as guardian and parent of DEFENDANT’S MOTION TO the minor children R.L. and C.L., DISMISS Plaintiff, 11 v. 12 CHERYL STRANGE; DAVID STILLMAN; DANA PHELPS; TERRY 13 REDMON; JANE AND JOHN DOES 1 THROUGH 10; CLARK COUNTY; CITY 14 OF VANCOUVER; JON PFISTER; OFFICER GOUDSCHALL; JOHN and 15 JANE DOE POLICE OFFICERS 1 – 10, et al., COWLITZ COUNTY, CITY OF 16 KELSO; TROY BRIGHTBILL, DEPUTY J HAMMER; DAN HSIEH, EIMIKO 17 MURLIN and JEFF IAN MURLIN; STEVE VALLEMBOIS and JIMMY 18 HOWARD; LEGACY SALMON CREEK HOSPITAL; KIMBERLY COPELAND, 19 M.D.; BETH KUTZERA; PAMELA WILLIAMS; KAYTENA GONZALEZ; 20 JANELLE REDMOND; JENNIFER L.

WHITE; SARAH COSLOW; J. AARON 21 MERINO; JAIMEE SCHEFFLER; LORAINE MARTINEZ; COURT 22 APPOINTED SPECIAL ADVOCATES; KATHY SHIRILLA; Defendants.

THIS MATTER comes before the Court on Dr. Kimberly Copeland, M.D.’s Motion to Dismiss Under FRCP 12(b)(6). Dkt. 13. The Court has considered the pleadings filed regarding the motion and the remaining file. The motion should be deemed moot because Plaintiff filed an amended complaint as a matter of course after Dr. Copeland filed the motion to dismiss.

I. BACKGROUND On March 12, 2021, Plaintiff, Joanna Lang, filed her original complaint in state court.

Dkt. 4. The original complaint referenced Dr. Copeland, but it did not name her as a defendant.

Id. On April 14, 2021, Plaintiff served Dr. Copeland with a summons and the original complaint. Dkt. 7-11.

On April 21, 2021, defendant City of Vancouver removed this matter to federal court based on federal question jurisdiction. Dkt. 1.

On May 4, 2021, Dr. Copeland filed the pending motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) “out of an abundance of caution.” Dkt. 20. Fourteen days later, on May 18, 2021, Plaintiff filed an amended complaint, which names Dr. Copeland as a defendant and specifics the claims against her. Dkt. 14.

II. DISCUSSION Pursuant to Federal Rule of Civil Procedure 15(a): (1) A party may amend its pleading once as a matter of course within: 19 (A) 21 days after serving it, or (B) If the pleading is one to which a responsive pleading is required, 21 20 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

Meaning that, under Rule 15(a)(1)(B), a plaintiff may file an amended complaint once as a matter of course within 21 days of service of a motion to dismiss made under Rule 12(b). Id.; see e.g., Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015).

1 Plaintiff filed the amended complaint fourteen days after Dr. Copeland filed the pending motion to dismiss under Rule 12(b)(6). Therefore, Plaintiff appears to have properly amended as a matter of course within 21 days.

4 “[A]n amended complaint supersedes the original, the latter being treated thereafter as non-existent.” Ramirez, 806 F.3d at 1008 (internal quotation omitted). Because Dr. Copeland moved to dismiss the original complaint, which “no longer performs any function,” her motion should be denied as moot. See id.; see also Barnes v. Dist. of Columbia, 42 F.Supp.3d 111, 117 (D.D.C. 2014) (“When a plaintiff files an amended complaint as of right within 21 days after the filing of the motion to dismiss under Rule 12(b), (e), or (f), the amended complaint becomes the operative pleading . . . and any pending motion to dismiss becomes moot[.]”)

11 Therefore, Dr. Kimberly Copeland, M.D.’s Motion to Dismiss Under FRCP 12(b)(6) (Dkt. 13) is denied as moot.

13 IT IS SO ORDERED.

14 The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address.

16 Dated this 8th day of June, 2021.

A ROBERT J. BRYAN United States District Judge