Gilberg v. American Arbitration Association et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
LARRY GILBERG,
Plaintiff,
v.
AMERICAN ARBITRATION
ASSOCIATION, et al.,
Defendants.
Case No. 26-cv-08930-TSH
ORDER HOLDING MOTION TO
DISMISS IN ABEYANCE
Re: Dkt. Nos. 10, 27, 28
Pending before the Court is the motion to dismiss filed by Defendants American
Arbitration Association, Inc., Francis J. Burke, Jr., Hon. Chris Cottle (Ret.), and Gilda R. Turitz.
ECF No. 10. On October 9, 2026, Plaintiff filed a notice stating he intends to file a first amended
complaint by October 21, 2026 and requesting the Court hold the motion in abeyance and deem it
moot upon amendment. ECF No. 27. Plaintiff has not yet filed an amended complaint. On
October 13, 2026, Plaintiff and Defendants Alexander Mednik and Mark Kesel filed a stipulation
extending those Defendants’ time to respond to the complaint. ECF No. 28. The stipulation
provides that, if Plaintiff files a first amended complaint on or before October 21, 2026, Mednik
and Kesel shall respond within 14 days after service of that pleading; otherwise, they shall respond
to the original complaint by November 4, 2026. Id.
Under Federal Rule of Civil Procedure 15(a)(1), a party “may amend its pleading once as a
matter of course” within 21 days after that pleading is served, or within 21 days after service of a
responsive pleading or motion under Rule 12. “[T]he general rule is that an amended complaint
supercedes the original complaint and renders it without legal effect.” Lacey v. Maricopa County,
693 F.3d 896, 927 (9th Cir. 2012) (en banc). A notice of intent to amend, however, does not itself
supersede the operative complaint. The motion therefore is not yet moot.
Case 3:26-cv-08930-TSH Document 29 Filed 10/13/26 Page 1 of 2

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United States District Court
Northern District of California
Accordingly, the Court HOLDS the motion to dismiss IN ABEYANCE pending
Plaintiff’s anticipated filing of a first amended complaint. The November 5, 2026 hearing is
VACATED, subject to being reset if necessary. The Court notes that, under the parties’
stipulation (ECF No. 28), Defendants Mednik and Kesel need not respond to the original
complaint by October 13, 2026. If Plaintiff files a first amended complaint on or before October
21, 2026, Mednik and Kesel shall respond to it within 14 days after service; otherwise, they shall
respond to the original complaint by November 4, 2026. The stipulation does not affect any other
parties’ deadlines or the Court’s previously set dates. If Plaintiff does not file an amended
complaint by October 21, 2026, the motion will remain pending, and the Court will set further
proceedings as appropriate. This Order does not extend the time to amend as a matter of course or
decide whether any proposed amendment is timely or otherwise proper.
IT IS SO ORDERED.
Dated: October 13, 2026
THOMAS S. HIXSON
United States Magistrate Judge
Case 3:26-cv-08930-TSH Document 29 Filed 10/13/26 Page 2 of 2