Bellone v. Roaring Camp, Inc.
- Virginia Demarchi
- 5:19-cv-00307
- U.S. District Court · Northern District of California
- 2
In Bellone v. Roaring Camp, Inc., Judge Demarchi denied the Gadabout defendants’ motion to dismiss as moot after Bellone filed a second amended complaint.
Chuck Bellone and the Gadabout defendants—Gadabout Tours, Inc., Lois Anderson, and Mark Anderson—were affected by the ruling; Roaring Camp, Inc. had already been dismissed by agreement.
What happened
In Bellone v. Roaring Camp, Inc., Roaring Camp had been dismissed by agreement, and Chuck Bellone then served a first amended complaint on Gadabout Tours, Inc., Lois Anderson, and Mark Anderson. Those defendants moved to dismiss that complaint.
Bellone filed a second amended complaint within the time allowed for amending once without permission after a motion to dismiss. Because the new complaint replaced the earlier one, the court denied the motion to dismiss as moot and vacated the scheduled hearing. The defendants’ response to the second amended complaint was due September 24, 2019.
Judge Virginia K. Demarchi issued the order on September 10, 2019.
The detailed version
- Bellone v. Roaring Camp, Inc. · No. 5:19-cv-00307
- Virginia Demarchi
- Sept. 10, 2019
Background
Roaring Camp, Inc. had been dismissed by agreement under Federal Rule of Civil Procedure 41(a)(1). Chuck Bellone then served a first amended complaint and summons on Gadabout Tours, Inc., Lois Anderson, and Mark Anderson, collectively called the Gadabout defendants. The Gadabout defendants moved to dismiss the first amended complaint under Rule 12(b)(6), which concerns whether a complaint states a legally sufficient claim.
Second amended complaint
On September 9, 2019, Bellone filed a second amended complaint as a matter of course under Rule 15(a)(1)(B). That rule allows a plaintiff to amend once without court permission within 21 days after being served with a motion under Rule 12(b). The court said the second amended complaint appeared to have been filed within that period. Because an amended pleading generally replaces the earlier pleading, the motion directed at the first amended complaint no longer presented a live issue.
Ruling
The court denied the Gadabout defendants’ motion to dismiss as moot. It also vacated the hearing scheduled for October 15, 2019, and stated that the defendants’ deadline to respond to the second amended complaint was September 24, 2019. The order did not decide the merits of the claims in the second amended complaint.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.