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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ESTATE OF ARIEL TORRES, et al., Case No. 1:24-cv-00731-KES-SAB

12 Plaintiff, ORDER REQUIRING DEFENDANTS

ELIZABETH BELTRAN, FREDERICK

13 v. BEYERLEIN, CALIFORNIA DEPARTMENT OF

CORRECTIONS AND REHABILITATION,

14 CALIFORNIA DEPARTMENT OF CONNIE GIPSON, KEVIN HIXON, JEFFREY

MACOMBER, ULISES OJEDA, AND DIANE

CORRECTIONS AND

15 TOCHE TO EITHER FILE A NOTICE OF REHABILITATION, et al.

WITHDRAWAL OF MOTION TO DISMISS OR

16 A NOTICE INFORMING COURT WHY Defendants. MOTION IS NOT MOOT 17 (ECF Nos. 14, 28) 18

FIVE DAY DEADLINE

19 20 On June 21, 2024, Plaintiff filed the complaint in this action. (ECF No. 1.) On August 21 15, 2024, Defendants Elizabeth Beltran, Frederick Beyerlein, California Department of 22 Corrections and Rehabilitation, Connie Gipson, Kevin Hixon, Jeffrey Macomber, Ulises Ojeda, 23 and Diane Toche (“Moving Defendants”) filed a motion to dismiss the complaint. (ECF No. 14.) 24 The pending motion was referred to the undersigned for the preparation of findings and 25 recommendations. (ECF No. 16.) 26 In a motion for administrative relief, Plaintiff requested and was granted an extension of 27 time to file a first amended complaint to September 13, 2024. (ECF Nos. 19, 22, 24.) On 28 September 13, 2024, Plaintiff filed a first amended complaint (“FAC”). (ECF No. 28.) 1 “[A]n amended complaint supersedes the original, the latter being treated thereafter as 2 non-existent” and as no longer performing any function in the case. Ramirez v. County of San 3 Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015); see also Hal Roach Studios, Inc. v. Richard 4 Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989). The September 13, 2024 FAC has become 5 the operative complaint in this action. The original complaint filed on June 21, 2024—the subject 6 of the pending motion to dismiss—is now non-existent and performs no function in this case. See 7 Ramirez, 806 F.3d at 1008. Because the Moving Defendants’ 12(b) motion is attacking a non- 8 existent complaint, the motion is ordinarily denied as moot. See id.; J.M. through McWilliams v. 9 Tulare City Sch. Dist., No. 1:21-CV-1766 AWI EPG, 2022 WL 1489481, at *1 (E.D. Cal. May 10 11, 2022) (denying motion to dismiss as moot after filing of amended complaint within twenty- 11 one days); Ruffa v. S. California Edison Co., No. 1:22-CV-01556 ADA BAM, 2023 WL 12 2143399, at *1 (E.D. Cal. Feb. 21, 2023) (same); but see Baday v. Kings Cnty., No. 1:20-CV- 13 00644 ADA SKO, 2022 WL 10631010, at *1 (E.D. Cal. Oct. 18, 2022) (noting that in the 14 “unusual situation…[w]hen the amended complaint is substantially identical to the original…a 15 court can rule on the motion to dismiss with reference to the amended complaint” because “[i]t 16 would be futile to dismiss [a defendant's] motion without prejudice, only to have [the defendant] 17 refile another motion to dismiss with effectively the same arguments”) (citation omitted). 18 Because the filing of the FAC on September 13, 2024 would ordinarily moot the motion 19 to dismiss, the Court shall require the Moving Defendants to file a notice informing the Court 20 why its pending motion is not moot, or, alternatively, file a notice to withdraw its motion to 21 dismiss. 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Defendants Elizabeth Beltran, Frederick Beyerlein, California Department of 24 Corrections and Rehabilitation, Connie Gipson, Kevin Hixon, Jeffrey Macomber, 25 Ulises Ojeda, and Diane Toche shall file a notice informing the Court why the 26 pending motion to dismiss (ECF No. 14) is not moot, or, alternatively, file a notice 27 to withdraw the motion to dismiss within five (5) days of the date of this order; 28 and 1 2. Failure to comply with this order will result in the Court’s recommendation to the 2 District Judge that the motion to dismiss (ECF No. 14) be denied as moot. 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ September 13, 2024

‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28