F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S E R G I O C A S I L L

A S R A M I R

E Z , Plaintiff-Appellant
,

v

.

C O U N T Y O F S A

N B E R N A R D I N O , a political subdivision; R O D H O O P S , Sheriff; W I L L I A M C H A M P I N , Sheriff’s Deputy ; D. P A T T O N , Sheriff’s Deputy ; and E D W A R D F I N N E R A N , Sheriff’s Deputy
, Defendants-Appellees
,

and

J I M O R R , Private I nvestig ator; R E C O R D I N G I N D U S T R Y A S S O C I A T I O N
O F A M E R

I C A , Defendants

. No. 13-56602

D.C. No. 5:13-cv-00573- J F W -SP

OPI N I ON

A ppeal from the United States District Court for the Central District of California J ohn W alter, District J udg e, Presiding

Arg ued and Submitted J u ne 5, 2015—Pasadena, California

F iled November 23, 2015R A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 2

B efore: J a

y S. B y bee and Carlos T. B e a, Circuit J udg es,

a nd Eliz abeth E. F oote, * District J udg e

. Opinion by

J udg e F o ote

SUMMARY * *

Civil P rocedure

The p anel r eversed the district court’s dismissal of a civil rig hts complaint and remanded for further proceeding s.

The panel held that plaintiff was not r equired, pursuant to F ederal Rule of Civil Procedure 15(a), to seek leave o f court before f iling his Second Amended Complaint. The panel h eld that Ru l e 15(a) does not impose any particular timing mechanis m go v erning the order in which amendments must be made. B ecause p laintiff’s F irst Amended Complaint, filed with consent of the op p o s ing party , complied with Rule 15(a)(2) as a

n “other amendment,” p laintiff was permitted to file a timely Second Amended Complai n t “ as a matter o f course” under Rule 15(a)(1), without seeking leave of court. According ly
, the panel reversed the d istrict court’s refusal to recog niz e the Second Amended Complaint. B ecause the timely filed Second Amended Complaint mooted the pending motion to dismiss, the panel reversed the district court’s g rant

* T h e Ho n o rab le Elizab eth E. Fo ote, Un ited States District J u d g e f o r th e W estern District o f

L o u isian a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 3

of defendants’ mo t i o n to d ismiss the F irst Amended Complaint a

nd the resulting dismissal of the plaintiff’s c ase.

COUNSEL

Moises A. Aviles (arg

ued), A v i les & Associates, San B ernardino, California, for Plaintiff-Appellant.

Dawn M. F lores-Oste r (arg ued), L ewis B risbois B isg aard & Smith, L os Ang e les, California, for Defendants-Appellees.

OP INION

F OOTE, District J udg e:

Plaintiff-Appellant, Serg io Ramirez
, appeals the dis t rict

co u r t ’ s dismissal of his civil rig h ts complaint and the subsequent denial o f h is motion to reconsider that dismissal. I n this appeal, we consider whether F e deral Rule of Civ il Procedure 15(a) required the Plaintiff, who file d h is F irst Amended Co m p l a i nt with consent of the opposing party , to seek leave of court b efore filing his Second Amended Complaint. This inquiry d emands that we carefully scrutiniz e Rule 15(a)’s tex t to discern w hether it imposes any particular timing mechanism g overning the order in which amendments
must be made. B ecause we find that Rule 15(a) d o e s not impose any such timing mechanism, we h old that the Plaintiff

was permitted to file his Secon d A m e nded Complaint “as a matter of course,” without seeki n g l eave of court. According ly
, we reverse the judg ment of t h e district court below.R A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 4

I.

This civil rig hts c ase arises from an incident in which San Be rnardino Sheriff’s deputies stopped the Plaintiff in h i s driveway whereupon they alleg e dly beat, tased, and detained him despite his c o mplian c e with their commands. The Plaintiff asserts that he was detained for fifteen day s without being arraig n ed or broug ht to court and that he was subsequently transferred to two different immig r ation detention ce n t e rs, where he endured additional suffering before being r eleased on bail. T h e merits of the case and the Plaintiff’s alleg ations ag ainst the Defendants are n ot at issue i n t his appeal, however. Rather, we focus on an intrig uing confluence of procedural mechanisms that resulted in the district court’s action below.

I n December 2012, the Plaintiff f i led suit in California
state court ag ainst the County of San B e r n ar d i no and other i n d i v iduals, chiefly claiming a v iolation of his civil rig hts. On April 2 9, 2013, after removal of the c ase to federal court, the Plaintiff and the Defendants stipulated to the dismissal o f certain Defendants and ag reed that the Plaintiff could amend his complaint within twenty day s. T he p arties submitted the stipulation to the district c o u r t for its approval. The district
court shortened the Plai n tiff’s d eadline to file an amended complaint from twenty day s to ten day s, but sig ned the order. W ithin ten day s, as contemplated by the stipulation and order, the Plaintiff filed his F irst A mended Complaint, alleg ing civil rig hts v iola t i o n s, battery
, false imprisonment, invasion o f privacy
, neg lig e nce, intentional infliction of emotional distress, and violations of Sections 51.7 and 52.1 of the California Unruh Civil Rig hts Act.R A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 5

On May 22, 2 013, the Defendants filed a m o tion to dismiss the F irst Amended Complaint, pursuant to F ederal Rule of Civil Procedure 12(b)(6), and also moved for a more definite statement, pursuant t o Rule 12(e). The motion was calendared for hearing on J u ne 24, 2013. Pursuant to Central D i strict of California L ocal Rule 7-9, the Plaintiff was required to file an o p p o s i tion to the Defendants’ motion no later than twent y

- o ne day s before the hearing date. I f the Plaintiff intended not to oppose the motion, L ocal Rule 7-9

m andated that he file a written statement confirming h e would not oppose the motion. Althoug h the Pl aintiff’s opposition or stat e m ent of non-opposition was due to the
court by J une 3, 2013, he failed to submit any response to the motion. Rather, on J une 12, 2013
, h e attempted to file a Second A mended Comp l aint. This filing w as rejected on J une 14, 2013 b ecause leave of court had neither been soug ht
nor g ranted.

B y J une 19, the D efendants’ motion to dism i s s w a s still unopposed. Consequently
, the district court g ra n t ed the motion t o d i s miss, rely ing upon L ocal Rule 7-12, which provides that “[ t] he failure to file any required document, or the failure to file it within the deadline
, m a y be deemed
consent to the g ran ting or denial of the motion

. . . .” Thus, without c onsidering the merits of the Plaintiff’s F irst Amended Complaint, the district c ourt deemed the Plaintiff’s silence a s his consent to the g ranting of the De f e n d ants’ motion to dismiss. The distri c t c ourt dismissed the F irst Amended Complaint
, without leave to amend, as to all Defendants, i ncluding two n onmoving Defendants, a nd dismissed the action entirely

.R A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 6

Nearly one month later, the Plaintiff fil e d a motion for reconsideration under Rules 59(e) and 60(b). There, he submitted that the Second Amended Complaint was

appropriately filed as an amended complaint filed o f course under F e dera l Rule of Civil Procedure 1 5(a ) ( 1), and properly superseded the F irst Amended Com p l aint, making the Motion to Dismiss, filed May 22, 2013, moot, and that a newl y d e cided F ederal case and a

n e wly decided State case would bar g ranting a Motion to Dismiss without leave to amend. I n the alternative, Plaintiff a ttempted to file the Second Amended Complaint based on the fact that the Plaintiff previou s l y o btained leave to f

i le the F irst Amended Complaint, and still believed that h e s t i ll had the rig h t to file an amended complaint filed of course, but throug h carelessne ss, attempted to file the Second Amended Complaint any way

.

The district court denied the motion for r e consideration,

ex p laining that the Plaintiff was not entitled to file a Second Amended Comp l a i n t without seeking leave of court, as he h ad already e x hausted his one matter of course amendment when he fil ed the F irst Amended Complaint. The court

ex p lained:

B a sed on the stipulation of the parties, the Court entered an order o n M ay 1, 2013 that had be e n lodg ed b y the parties dismissing those defendants [ in t h e orig inal complaint] and setting a deadline for the filing of an amended c o mplaint. Althoug h the May 1,R A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 7

2013 O rder set a dead l i ne by which Plaintiff had to file a F irst Amended Complain t, the stipulation submitted by the pa rties did not seek, and the C o u rt did not g rant, Plaintiff lea v e to file his F irst Amended Complaint. T hus, Plaintiff’s F irst Amended Complaint filed on May 9, 2013 constituted his o ne “as a matt e r of course” filing of an amended complaint. I n addition, e ven i f the May 1, 2013 Order is construed as g rant i n g Plaintiff leave t o amend his orig inal Complaint, Plaintiff w a s still not entitled to file his Second Amended Complaint without seeking leave of the Court because he had waived his rig ht t o f

i le an amended complaint “as a matter of course.”

. . . T herefore, the Court properly r ejected the Second Amended Complaint because Plaintiff f ailed to seek leave of the Court to file it.

The district court f

urther reasoned that the D e f endants’ motion to d ismiss was properly g ranted under the L ocal Rules because the Plaintiff fail ed to file an opposition, which was deemed consent to the g ranting of the motion. The court found that vacating the dismissal of the case would prejudice the Defendants w ho would b e required to devote additional time and resources to more litig ation; that prejudice would be “compounde d by the fact that g r anting Plaintiff’s Motion

w ould simply reward Plaintiff for his repeated violations o f the F ederal Rule s o f Civil Procedure and the L ocal Rules while the County Defendants incurred a dditional unnecessary

ex p e n s es in defending this action.” F or those reasons, theR A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 8

district court concl u d ed that the Plaintiff was not entitled to relief under Rule 60(b) and denied the motion. 1

II.

W e have jurisdiction pursuant to 28 U.S.C. § 1291. The district court’s rejection of the Second Amended Complaint, pursuant to its interpretation of Rule 15, will be reviewed de

novo

. See Cal. Scents v. Surco Prods

. , I n c

. , 4 0 6 F .3d 1102, 1105 (9th Cir. 2005) (“This cour t reviews de novo a district court’s interpretation of t h e F e deral Rules of Civil Procedure.”).

III.

The Plaintiff’s chief c omp l aint on appeal is that Rule 15(a) is ambig uous and that u nder the Rule, it is not clear whether he w as required to seek leave of c o u r t t o file his Second Amended Complaint. After a thoroug h ex amination of the Rule, we hold that he was not.

Rule 15(a) provides:

(1) Am ending as a Matter o f Course. A party may amend its pleading once as a matter of course within:

(A) 21 day s after serving

it, or

1 A s w e rev erse th is case o n th e b asis o f Ru le 1 5
, w e d o n o t reach th e arg u m en ts ad v an ced o n ap p eal reg ard in g th e oth er issu es raised in th e P lain tif f ’ s m otio n f o r reco n sid eratio n

.R A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 9

( B) if the pleading is o ne to whi c h a responsive pleading is required, 21 day s after servi c e of a responsive pleading o r 21 day s after service o f a motion under Rule 12(b), (e), or (f), w hichever is earlier.

(2) Other Am endm ents. I n all other cases, a
p a r t y may amend its p leading only with the opposing party ' s written consent or the court' s le av e

. The c ourt should freely g ive leave when justice so requires.

F ed. R. Civ. P. 15(a). 2 The Plaintiff c ontends the district
court erred in striking his Second Amended Complaint a nd sh o u l d have allowed it to be filed. While we ag ree with the Plaintiff that the district court impermissibly rejected t he Second Amended Complaint, we do not a g ree that Rule 15(a) is ambig uous.

As the Supreme Court has long instructed in the cont ex t of statutory interpretation, w hen the wording of a rule is clear and unambig u ous and is n o t capable of more than o ne meaning
, “the duty o f interpretation does not arise, and the rules which a

re to aid doubtful meaning s need no discussion.” Caminetti v. United States
, 242 U.S. 470, 485 ( 1917); see also Conn. Nat’l Bank v. Germain
, 503 U.S. 249, 254 (1992)

2 Ru le 15 w as am en d ed in 2 0 0 9

. P rio r to th at am en d m en t, it p ro v i ded th at a p arty co u l d am en d o n ce as a m atter o f co u rse at an y tim e b ef

o re a resp on s iv e p l e a d i n g w as serv ed
, o r w ith in tw en ty d ay s o f serv i ce if n o resp on s iv e p lead in g w as p erm itted an d t h e case w as n o t o n th e co u rt’ s t rial calen d ar. Hells Ca n

yo n Pres. Co u n cil v. U.S

. Fo rest S erv. , 4 0 3 F.3 d 6 8 3
, 6 8 8

– 8 9 (9 th Cir. 2 0 0 5 ). O th erw ise, a party co u ld am en d o n l y w ith leav e

o f co u rt o r co n sen t o f

th e o pp o s in g p arty

. Id

. at 6 8 9

.R A M I R E Z V

. C T Y

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N B E R N A R D I N O 10

(“W hen the words of a s t at ute are unambig uous, then, this first canon is also the last: judicial inquiry is c o m plete.”) (internal quotation marks omitted). W e think Rule 15 is clear and unambig uous. I n deed, a straig htforward reading o f Rule 1 5 ( a ) provides several distinct methods by which a plaint i f f
may amend his complaint and the concomitant p arameters for doing so.

The district court erroneously held that the F irst Amended Complaint was filed as a matter of course and, thus, that the Plaintiff c ould not file anoth e r 1 5 (a)(1) amendment. The district court therefore ruled that the Plaintiff w as required to seek leave of cou r t u n der 15(a)(2). I n the alternative, the district court o pined that if the f irst amendment was filed with leave of court und e r 1 5 ( a ) (2), then the Plaintiff h ad effectively w aived his rig ht to file a matter of course amendment u nder 15(a)(1). W e disag ree both with the district court’s characteriz ation of the F irst Amended Complaint as being the Plaintiff’s one mat ter of course amendment, a s well as its conclusion ab o u t t he timing a nd waiver mechanism of Rule 15(a).

Here, the Plaintiff’s f

i r st amendment was accomplished pursuant to a stipulation between the parties. T his particular amendment c omplied w ith Rul e 15(a)(2) as an “other amendment” because it was filed with “the opposing party ’s written consent.” I t is arg uable that this a mendment w as also filed w ith the “court’s leave,” w hich, as the district court recog niz ed, is an alternative method of comply ing with Rule 15(a)(2). 3

3 T h e d i s trict co u rt o p in ed th at th e Plain tif f n ev er so u g h t l eav e in f

ilin g th e First A m en d ed C o m

p lain t, an d f

u rth er, t h a t i t n ev er actu ally g ran tedR A M I R E Z V

. C T Y

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N B E R N A R D I N O 11

Thus, the second question before this court is whether the Plaintiff w as a llowed to file a Second Amended Complaint a s

a matter of cours e u n d e r 15(a)(1), o r whether his F irst Amended Complaint somehow ex hausted his one matter o f

course amendment. We hold that Rule 15 provides different
way s to amend a complaint, and these way s are not mutually

ex c lusive. Rule 15 i s org aniz ed substantively
, not chronolog ically

. I t does not prescribe any particular sequence for the ex ercise of its provisions. That is, it does not mandate that the matter of course amendment under 15(a)(1) be

ex h austed before an amendment may be made under 15(a)(2),

nor does it state that the ability to a men d u nder 15(a)(1) is

ex h au sted or waived once a 1 5(a)(2) a mendment is made. 15(a)(2)’s phrase “in all other cases” does not indicate that it chronolog ically follows 15(a)(1). I ndeed, it does not e v e n hint that there is a timing component to the operation of this Rule. Rather, it plainly provides an alternative to the methods available under 15(a)(1). Hence, we conclude that a p laintiff
may a mend i n whatever order he sees fit, provided he complies with the respective requirements found w ithin 15(a)(1) and 15(a)(2).

F or ex ample, as in this cas e , a p laintiff may file his first amended c omp l a int w ith c o n sent from the opposing party , which satisf

i e s R u l e 15(a)(2). He may thereafter utiliz e his

one matter of course amendment under 15(a)(1), so long as he files it timely

. The reverse is equally true and i s m ore often the case: a plaintiff may file his o ne matter of course amendment under Rule 15(a)(1) and then seek consent from opposing counsel or leave of court to file a second amended

leav e. Ho w ev er, f

in d in g th at 1 5 (a)(2 ) w as satisf ied b y th e stip u latio n , w e

n eed n o t reach a d ecisio n o n th at p articu lar issu e.R A M I R E Z V

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N B E R N A R D I N O 12

complaint under 15(a)(2). Either order complies with the tex t of the Rule.

W e base our decision on a straig htforward reading of the
tex t of, as well as our own past remarks about, Rule 15. That is, we previously have considered the phrase matter of course

as consonant with “ a s o f rig ht,” imply ing
, if not ex pressly declaring
, that Rule 15 confers a “rig ht” t o amend upon parties. See Lacey v. Maricopa Cty.
, 693 F .3d 896, 927 (9th Cir. 2012) ( p a r t ies have twenty -one day s “to a mend as o f ri gh t ”); Rick-Mik Enters., Inc. v

. Equilon Enters. LLC
, 532 F .3d 9 63, 977 (9th Cir. 2008) (ex plainin g in preamendment contex t that until a responsive pleading is f iled o r

a final judg ment dismissing the case is entere d
, the p laintiff “had an absolute ri g h t t o a mend”); Shaver v. O perating Eng’rs Local 428 Pension Trust Fund , 332 F .3d 1198, 1201 (9th Cir. 2003) (before a responsive pleading was filed a nd before the case was dismissed, the plaintiffs “had an absolute rig ht to amend their complaint”); Sanford v. Motts
, 258 F .3d 1117, 1120 (9th Cir. 2001) ( [ Rule 15(a)] “g ives a plaintiff o ne opportunity to amend a s of rig ht. The district court [ erred by ]
not afford[ ing ] this opportunity .”); W orldwide C

h u r ch of God, Inc. v. California
, 623 F .2d 6 1 3
, 6 1 6 (9th Cir. 1 980) (“[ A] p arty may , a s a matter of ri gh t , am e nd its complaint once before the filing

of a ‘responsive pleading ’ or the entry of final judg ment . . . .”).

Thus, i t i s clear that we routinely have viewed Rule 15(a)(1)’s ability to amend as a rig h t, o ne which is ex hausted or limited only

by the restrictions set forth in the Rule itself. I n other words, before 2009, a plaintiff had the rig ht to amend his complaint up until the p o i n t in time when a responsive pleading was file d or within twenty day s after service of the pleading if no response w as p e r m itted and the case was notR A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 13

o n t h e t r ial c alendar. Since 2009, a plaintiff has the rig h t to amend within twenty -one day s of service of t h e complaint (15(a)(1)(A)), or w ithin twenty -one day s of ser v i ce of a responsive pleading o r service of a motion under Rule 12(b), (e)
, or (f), whichever comes first (15(a)(1)(B )). The Plaintiff’s 15(a)(2) amendment, filed first in time, cannot be construed as a waiver o r ex haustion of his a utomatic rig ht to amend under 1 5(a)(1), so long as that amendment was timely

.

I ndeed, it w as. The Defendants’ Rule 12(b)(6) and 12(e) motion was f

iled on May 22, 2 013. Rule 15(a)(1)(B ) allowed the Plaintiff to a m end once within twenty -one day s a fter service of that m otion. The Plaintiff attempted to file his Second Amended Complaint on J une 12, 2013, which was the twenty -first d ay after the motion to dismiss was filed. Hence, the amendment was timely filed. 4

IV.

W h at outcome, then, results when a timely filed Second Amended Complaint coincides with an unopposed motion to di smiss? I t is well-established in our circuit that an “amended complaint supersedes the orig inal, the latter being treated thereafter as non-ex istent.” F orsyth v. Humana, Inc.
, 114 F .3d 1467, 1474 ( 9th Cir. 1997) ( i nternal citation omitted), overruled on other gro u n d s b y Lacey
, 693 F .3d at 927–28; see a lso V

aladez-Lopez v. Chertoff
, 65 6 F .3d 851, 857 (9th Cir. 2011). I n other words, “ the orig inal pleading no long er performs any function

. . . .” Ferdik v. B o nzelet
, 963 F .2d 1 258, 1262 (9th Cir. 1992). Cons equently
, the

4 B ecau se th e d istrict co u rt rej ected th e Seco n d A m en d ed Co m p lain t

u p o n f ilin g , th e i s s ue of tim elin ess w as n ev er co n sid ered in th e co u rt b elo w , n o r is it arg u ed h ere.R A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 14

Plaintiff’s Second Amended Complaint superseded the F irst Amended Complaint, and the F irst A m ended Complaint ceased to e x ist. B e cause the D ef e n dants’ motion to dismiss targ e ted the Plaintiff’s F irst Amended Complaint, which was

no long er in e ffect, we c o n c l u de that the motion to dismiss should hav e b e e n d e e med moot before the district court g ranted it.

W e understand that d iscrete p r o c edural mechanisms
converg e d in this case— the stipulation which resulted in the F irst Amended Complai nt, the motion to dismiss, the proffered Second Amended Complaint, and the lack o f

o p position to the motion to dismiss. However, we find that the d i s t r i ct court erred in its interpretation of the interplay between Rule 15 and L ocal Rule 7-12, which deems the lack of o p p o s i t ion as consent to the g ranting of the motion. The d i s t rict c ourt e rred in permitting a local rule to trump t h e g overning federal rule. The application of L ocal Rule 7-12 resulted in the dismissal of the Plain tiff’s case and the concomitant denial of leave to amend, all without considering
t h e l e g al import of the Second Amended Complaint. T h i s deprived the P l a i n t i f

f of his rig ht to f

ile an amended complaint under Rule 15. I f in conflict, the L ocal Rule must
y ield to the federal rule, here Rule 15. S e e C o l g r o ve v

. Battin
, 413 U.S. 149, 1 6 1 n.18 (1973). We therefore reverse the district court’s g rant of the motion to dismiss.

V.

W e decline to a ddress the Plaintiff’s requ e s t to remand
t his action to state court. W e g enerally do not co n s i d e r arg uments raised f

or the f irst time on app e a l

. S

ee Smith v

. Marsh
, 194 F .3d 1045, 1052 (9th Cir. 1999). W e have f ound

no record evidence demonstrating that the Plaintiff raised thisR A M I R E Z V

. C T Y

. O F S A

N B E R N A R D I N O 15

issue before the district c o urt, and therefore, we decline to consider it now.

VI.

F or the foreg oing reasons, we conclude that the Plaintiff

was p ermitted to f

ile his Second A men d e d Complaint as a matter o f c ourse without seeking leave to amend. According ly
, we reverse the district court’s re f u sal to recog niz e the Second Amended Complaint. B ecause the timely filed Second Amended Complaint mooted the motion
to dismiss, we reverse the district co u r t ’ s g rant o f Defendants’ motion to dismiss the superseded F irst Amended Complaint and the r esulting dismissal of the Plaintiff’s c ase. W e remand for further proceeding s c onsistent with this opinion.

REVERSED AND REMANDED

.