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MUKESH KUMAR, Plaintiff, v. EMC MORTGAGE CORPORATION, Defendant.

ORDER

CHARLES BREYER, District Judge

Now pending before the Court are a Motion to Dismiss the Complaint for Failure to State a Claim, filed on May 4, 2009 by Defendants EMC Mortgage Corporation, Mortgage Electronic Registration Systems, Inc., and Wells Fargo Bank, National Association, As Trustee for Structured Asset Mortgage Investments II Inc. GreenPoint Funding Trust 2006-AR3, and a Motion to Dismiss and Motion to Strike, filed on May 4, 2009 by Defendants Countrywide Home Loans, Inc. and Bank of America Corporation. Defendants' motions are moot because plaintiff filed a First Amended Complaint on May 29, 2009. A party may amend his complaint once as a matter of course at any time before a responsive pleading is served. Fed.R.Civ.P. 15(a). Defendants never answered the complaint; instead, they filed motions to dismiss. In the Ninth Circuit a motion to dismiss is not considered a "responsive" pleading. See Miles v. Dep't of Army, 881 F.2d 777, 781 (9th Cir. 1989). Thus, plaintiff does not require leave of court to file a first amended complaint. See Rhoades v. Avon Products, Inc., 504 F.3d 1151, 1158 (9th Cir. 2007). Accordingly, defendants' motions to dismiss the original complaint are both DISMISSED

AS MOOT.

IT IS SO ORDERED.

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KUMAR v. EMC MORTGAGE CORPORATION
(Jun 1, 2009)