Maag v. U.S. Bank National Association

Opinion

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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 ROBERT MAAG, ANTHONY BELL, Case No.: 21-cv-00031-H-LL 12 WENDELL COVAL, and NICK 13 STERNAD, individually, and on behalf of ORDER DENYING DEFENDANTS’ a class of similarly situated persons, PARTIAL MOTION TO DISMISS AS 14 MOOT Plaintiffs, 15 v. [Doc. No. 8.] 16 U.S. BANK, NATIONAL 17 ASSOCIATION, 18 Defendant. 19 20 On November 9, 2020, Plaintiff Robert Maag filed a class action complaint against 21 Defendants U.S. Bancorp and U.S. Bank, National Association in the Superior Court for 22 the State of California, County of San Diego. (Doc. No. 1, Notice of Removal ¶ 5.) On 23 December 8, 2020, Plaintiff filed a first amended complaint against Defendants in state 24 court, alleging claims for: (1) violation of the California Consumer Privacy Act, California 25 Civil Code § 1798.150 et seq.; (2) negligence; and (3) violation of California’s Unfair 26 Competition Law, California Business & Professions Code § 17200 et seq. (Doc. No. 1-2, 27 FAC.) On January 8, 2021, Defendants removed the action to the United States District 28 Court for the Southern District of California pursuant to 28 U.S.C. § 1441 on the basis of ] || jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d). (Doc. No. 1, Notice 2 ||of Removal ¥ 1.) 3 On January 15, 2021, Defendants U.S. Bancorp and U.S. Bank filed a partial motion 4 ||to dismiss Plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 5 || 12(b) for failure to state a claim. (Doc. No. 8.) On February 1, 2020, the Court took the 6 || motion to dismiss under submission. (Doc. No. 13.) On February 2, 2020, in lieu of filing 7 ||an opposition to the motion to dismiss, Plaintiff filed a second amended complaint 8 ||dropping U.S. Bancorp as a defendant; dropping his claim for negligence; and adding 9 || Anthony Bell, Wendell Coval, and Nick Sternad as additional plaintiffs. (Doc. No. 14, 10 ||SAC.) See Fed. R. Civ. P. 15(a)(1)(B); see Sanford v. Motts, 258 F. 3d 1117, 1120 (9th 11 2001) (Fed. R. Civ. P. 15(a) gives a plaintiff one opportunity to amend as of right.”’). 12 In light of Plaintiffs’ amended pleading, the Court denies as moot Defendants’ 13 || partial motion to dismiss the first amended complaint without prejudice to Defendant U.S. 14 ||Bank moving to dismiss the second amended complaint. See Ramirez v. Cty. of San 15 || Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“It is well-established in our circuit that 16 ‘amended complaint supersedes the original, the latter being treated thereafter as non- 17 |/existent.’ ... Consequently, the Plaintiff's Second Amended Complaint superseded the 18 || First Amended Complaint, and the First Amended Complaint ceased to exist. Because the 19 Defendants’ motion to dismiss targeted the Plaintiff's First Amended Complaint, which 20 || was no longer in effect, we conclude that the motion to dismiss should have been deemed 21 ||moot....” (citations omitted)). In addition, the Court dismisses Defendant U.S. Bancorp 22 the action. 23 IT IS SO ORDERED. 24 || DATED: February 3, 2021 | | | ul | | | 29 MARILYN ®. HUFF, Distri ge 26 UNITED STATES DISTRICT COURT 27 28