1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ROSEMARY HINOJOSA MULLINS, CASE NO. 1:21-CV-0 405AWI SAB individually and as guardian ad litem for 11 minor K.A.M.,

ORDER VACATING APRIL 19, 2021

12 Plaintiffs HEARING AND ORDER ON

DEFENDANTS’ MOTION TO DISMISS

13 v.

14 COUNTY OF FRESNO, et al., (Doc. No. 3)

15 Defendants

16 17 18 This removed matter is a civil rights case that stems from a fatal encounter between 19 decedent Kenneth Mullins and members of the Fresno County Sheriff’s Department. Currently 20 before the Court Defendant’s Rule 12(b)(6) motion to dismiss. Hearing on this motion is set for 21 April 19, 2021. 22 Background 23 On March 12, 2021, Defendants removed this matter from the Fresno County Superior 24 Court. 25 On March 19, 2021, Defendants filed a Rule 12(b)(6) motion to dismiss. 26 On March 22, 2021, Defendants filed an amended memorandum in support of their Rule 27 12(b)(6) motion. 28 On April 9, 2021, Plaintiffs filed a First Amended Complaint (“FAC”). 1 Discussion 2 Under Rule 15(a)(1)(B), “A party may amend its pleading once as a matter of course: . . . 3 |(B) if the pleading is one to which a responsive pleading is required .. . 21 days after service of a 4 motion under Rule 12(b)....” This rule confers upon a party a right to amend, the only 5 limitations being those found within Rule 15(a)(1) itself. Ramirez v. County of San Bernardino, 6 | 806 F.3d 1002, 1007-08 (9th Cir. 2015). Some courts have used the term “absolute right” in 7 | describing a party’s ability to amend under Rule 15(a)(1). E.g. In re Alfes, 709 F.3d 631, 639 (6th 8 | Cir. 2013); Galustian v. Peter, 591 F.3d 724, 730 (4th Cir. 2010); James Hurson Assocs., Inc. v. 9 | Glickman, 229 F.3d 277, 282-83 (D.C. Cir. 2000). “[A]n amended complaint supersedes the 10 | original, the latter being treated thereafter as non-existent” and as no longer performing any 11 | function in the case. Ramirez, 806 F.3d at 1008; see also Hal Roach Studios, Inc. v. Richard 12 | Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989). 13 Here, Plaintiffs filed their FAC on the twenty-first day after Defendants filed their Rule 14 | 12(b)(6) motion. Therefore, the FAC was timely under Rule 15(a)(1)(B). Because the FAC was 15 timely filed, the FAC is the operative complaint, and the original complaint is now non-existent 16 | and performs no function in this case. See id. Because Defendants’ Rule 12(b)(6) motion is 17 | attacking a now non-existent complaint, the Rule 12(b)(6) motion is moot. See Ramirez, 806 F.3d 18 | at 1008; Hal Roach Studios, 896 F.2d at 1546. 19 20 ORDER 21 Accordingly, IT IS HEREBY ORDERED that: 22 Defendants’ Rule 12(b)(6) motion to dismiss (Doc. No. 3) is DENIED as moot; and 23 The April 19, 2021 hearing on Defendants’ now moot Rule 12(b)(6) motion is VACATED. 24 25 IT IS SO ORDERED. 96 |Dated: _ April 14, 2021 □□ 7 □ Z Cb Led — SENIOR DISTRICT JUDGE 27 28