Kimball v. County of San Diego
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court considered Defendants' motion to dismiss the original complaint after Plaintiff filed a First Amended Complaint. The court denied the motion as moot because the amendment was filed before any responsive pleading was served.
| What the court decided | The model |
|---|---|
Defendants' Motion to Dismiss (ECF No. 5) is denied as moot.“Defendants’ motion to dismiss 1s hereby DENIED as moot. (ECF No. 5.)” | agree with court The court correctly applied the rule that a motion to dismiss is not a responsive pleading under Rule 15(a). Because the plaintiff filed the First Amended Complaint before any responsive pleading was served, the right to amend was preserved, rendering the motion to dismiss the original complaint moot. This is the standard procedural outcome in this situation. |
The order itself: sound — The order is procedurally correct and relies on the appropriate Ninth Circuit authority to determine that the motion to dismiss is moot following the filing of an amended complaint prior to a responsive pleading.
Opinion
I 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || ZACK KIMBALL, Case No. 24-cv-0682-BAS-VET Plaintiff, | ORDER DENYING DEFENDANTS’ 13 V. MOTION TO DISMISS AS MOOT 14 || 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 18 || 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. 20 || United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] motion to dismiss is not a ‘responsive 21 || pleading’ within the meaning of [Rule 15(a)].”). Here, Defendant filed a motion to dismiss 22 ||(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 28 || DATED: June 10, 2024 (ypillg (isha. 6 How. Cynthia Bashant _, United States District Judge