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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 MARIA BOLLINGER, et al., Case No. 1:24-cv-00303-JLT-SAB

12 Plaintiffs, ORDER REQUIRING DEFENDANT TO EITHER

FILE A NOTICE OF WITHDRAWAL OF

13 v. MOTION TO DISMISS OR A NOTICE

INFORMING COURT WHY MOTION IS NOT

14 STARBUCKS CORPORATION, MOOT

15 Defendant. (ECF Nos. 15, 20)

16 FIVE DAY DEADLINE

17 18 On March 12, 2024, Plaintiffs filed the complaint in this action. (ECF No. 1.) On June 3, 19 2024, Defendant filed a motion to dismiss the class action complaint in its entirety. (ECF No. 20 15.) The pending motion was referred to the undersigned for the preparation of findings and 21 recommendations. (ECF No. 16.) The hearing is currently set for August 7, 2024. (ECF No. 17.) 22 On June 18, 2024, the parties filed a stipulation to extend the deadline for Plaintiffs to file their 23 opposition to July 3, 2024, and for Defendant to file its reply, if any, no later than July 22, 2024. 24 (ECF Nos. 18, 19.) The stipulation did not mention the filing of a first amended complaint. On 25 June 24, 2024, Plaintiffs filed a first amended complaint. (ECF No. 20.) 26 Under Rule 15(a)(1)(B), “A party may amend its pleading once as a matter of course: ... 27 (B) if the pleading is one to which a responsive pleading is required ... 21 days after service of a 28 motion under Rule 12(b), (e), or (f)....” Fed. R. Civ. P. 15(a)(1)(B). “[A]n amended complaint 1 supersedes the original, the latter being treated thereafter as non-existent” and as no longer 2 performing any function in the case. Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 3 (9th Cir. 2015); see also Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 4 (9th Cir. 1989). 5 Here, the FAC was filed on the twenty-first day after Defendant filed its motion under 6 Rule 12(b). The FAC has therefore become the operative complaint in this action. The original 7 complaint filed on March 12, 2024—the subject of the pending motion to dismiss—is now non- 8 existent and performs no function in this case. See Ramirez, 806 F.3d at 1008. Because 9 Defendant’s 12(b) motion is attacking a non-existent complaint, the motion is ordinarily denied as 10 moot. See id.; J.M. through McWilliams v. Tulare City Sch. Dist., No. 121CV1766AWIEPG, 11 2022 WL 1489481, at *1 (E.D. Cal. May 11, 2022) (denying motion to dismiss as moot after 12 filing of amended complaint within twenty-one days); Ruffa v. S. California Edison Co., No. 13 122CV01556ADABAM, 2023 WL 2143399, at *1 (E.D. Cal. Feb. 21, 2023) (same); but see 14 Baday v. Kings Cnty., No. 120CV00644ADASKO, 2022 WL 10631010, at *1 (E.D. Cal. Oct. 18, 15 2022) (noting that in the “unusual situation…[w]hen the amended complaint is substantially 16 identical to the original…a court can rule on the motion to dismiss with reference to the amended 17 complaint” because “[i]t would be futile to dismiss [a defendant's] motion without prejudice, only 18 to have [the defendant] refile another motion to dismiss with effectively the same arguments”) 19 (citation omitted). 20 Because the filing of the first amended complaint on June 24, 2024 would ordinarily moot 21 the motion to dismiss, the Court shall require Defendant to file a notice informing the Court why 22 its pending motion is not moot, or, alternatively, file a notice to withdraw its motion to dismiss. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Defendant shall file a notice informing the Court why the pending motion to 3 dismiss (ECF No. 15) is not moot, or, alternatively, file a notice to withdraw its 4 motion to dismiss within five (5) days of the date of this order; and 5 2. Failure to comply with this order will result in the Court’s recommendation to the 6 District Judge that Defendant’s motion to dismiss (ECF No. 15) be denied as 7 moot. 8 9 IT IS SO ORDERED. DAM Le 10 | Dated: _June 27, 2024 __ 4 UNITED STATES MAGISTRATE JUDGE

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