Free Response in Opposition to Motion - District Court of California - California

Case 3:08-cv-00051-L-CAB

Document 9

Filed 04/03/2008

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2030 Main Street, Suite 1300 Irvine, California 92614 T: (949) 260-9156; F: (949) 260-9157

Anthony F. Geraci (SBN 238892) Christina L. Geraci (SBN 236719) Geraci Law Firm, APC 2030 Main Street, Suite 1300 Irvine, CA 92614 Tel.: (949) 260-9156 Fax: (949) 260-9157 E-mail: [email protected] Attorneys for: Plaintiffs, JIM COLLINS and MARYANN COLLINS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JIM COLLINS and MARYANN COLLINS ) ) Plaintiffs, ) ) vs. ) ) WINEX INVESTMENTS, LLC, a Wyoming ) limited liability company, WILLIAM ) KRUSHESKI, an individual, JOHN ) SULLIVAN, an individual, ROBERT B. ) HYDEMAN, an individual, EMILIO PINEDA, ) an individual, DOES 1 through 100, inclusive, ) ) Defendants. ) ) ) ) Case No. 08 CV 0051 L CAB PLAINTIFFS' OPPOSITION TO DEFENDANT WINEX, ET AL.'S MOTION TO DISMISS

Geraci Law Firm, APC

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Date: April 7, 2008 Time: 10:30am Dept: 14 Honorable James Lorenz

1. The Court Should Dismiss Defendants' Motion to Dismiss Because It is Moot

The Court should dismiss Defendants' Motion to Dismiss pursuant to Rule 15(a) because Plaintiffs filed their First Amended Complaint with the Court on April 3, 2008. Defendants, and each of them, have not made a responsive pleading before this Court as evidenced by the Defendants' Motion to Dismiss. Therefore, Plaintiffs have a right to amend their Complaint any time before a responsive pleading is made. See Federal Rule of Civil Procedure 15(a)(1)(A); Allwaste Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995).

1 ___________________________________________________________________________________________ PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

Case 3:08-cv-00051-L-CAB

Document 9

Filed 04/03/2008

Page 2 of 3

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2030 Main Street, Suite 1300 Irvine, California 92614 T: (949) 260-9156; F: (949) 260-9157

Plaintiffs have significantly amended their Complaint such that the Motion to Dismiss filed by Defendants is moot.

Dated: April 3, 2008

GERACI LAW FIRM, APC

By:

/s/Anthony F. Geraci Attorneys for Plaintiffs, JIM COLLINS and MARYANN COLLINS

Geraci Law Firm, APC

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2 ___________________________________________________________________________________________ PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

Case 3:08-cv-00051-L-CAB

Document 9

Filed 04/03/2008

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2030 Main Street, Suite 1300 Irvine, California 92614 T: (949) 260-9156; F: (949) 260-9157

CERTIFICATE OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange; I am over the age of eighteen years and not a party to the within entitled action; my business address is 2030 Main Street, Suite 1300, Irvine, California 92614. On April 3,2008, I served the following document(s): PLAINTIFFS' OPPOSITION TO DEFENDANTS MOTION TO DISMISS Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Elizabeth Balfour, Esq. Sheppard Mullin Richter & Hampton, LLP 12275 El Camino Real, Suite 200 San Diego, California 92130-2006 [X] BY ELECTRONIC MAIL: I caused the above-entitled documents to be served through CM ECF addressed to all parties appearing on the CM ECF electronic service list for the above-entitled case. The file transmission was reported as completed and a copy of the CM ECF Filing Receipt will be maintained with the original documents in our office. [X] FEDERAL: I declare that I am employed in the office ofa member of the bar of this Court at whose direction the service was made. I declare under penalty of peIjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. I declare under penalty of perjury under 21 the laws of the United States of America that the foregoing is true and correct. Executed on April 3, 2008 at Irvine, California. /s/ Anthony F. Geraci

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3 ___________________________________________________________________________________________ PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS