Ewing v. Sunroad BCV Auto, Inc
- Proceeding
- district
- Area
- civil
- Panel
- Roger T. Benitez (author)
Analysis
The court considered a defendant's motion to dismiss and a plaintiff's motion to strike in a TCPA case. The court denied the motion to dismiss as moot because the original complaint was superseded by an amended complaint, and denied the motion to strike because the plaintiff failed to justify an ex parte filing and the attached emails were necessary context.
| What the court decided | The model |
|---|---|
Defendant's Motion to Dismiss is DENIED as moot.“Accordingly, Defendant’s motion to dismiss is DENIED as moot.” | agree with court The court correctly applied the rule that an amended complaint supersedes the original, rendering a pending motion to dismiss the original complaint moot. The court noted it would address a renewed motion separately. |
Plaintiff's Motion to Strike is DENIED.“Accordingly, Plaintiff's ex parte motion to strike is DENIED.” | agree with court The court found the plaintiff failed to meet the local rule standard for an ex parte motion and determined the attached emails were the basis of the underlying motion, making them necessary for the court to rule. The citation to a prior unpublished order from the same district supports the proposition that rules against attaching letters do not apply when the letters are the subject of the motion. |
The order itself: sound — The order correctly applies Ninth Circuit precedent regarding the mootness of motions to dismiss after the filing of an amended complaint. The denial of the motion to strike is supported by the local rule requirements and the practical necessity of the attached documents for the court's review. The reasoning is direct and supported by the cited authorities.
How this analysis was made · dispute it
unusual dispositionOpinion
FILED 7 4 soi SHEN ORTRICT OF CALFORNA BY 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 , 1 ||complaint is filed, it “supersedes the original, the latter being treated thereafter as non- 2 ||existent.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (citation 3 |lomitted), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896, 928 (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, 806 F.3d 1002, 1008 (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