UPDATE: In response to Orly's "Preliminary Response," Judge Carter issued a ruling today:
The Court is in receipt of Plaintiffs’ counsel Dr. Orly Taitz’s (“Taitz”) Preliminary Response to Defendants’ 9-4-09 Motion to Dismiss (“Opposition”). The caption of the Opposition indicates that the Opposition is being filed “with reservation of rights to Respond further by filing Plaintiffs’ Second Amended Complaint on or before Friday October 2, 2009.”
Pursuant to Federal Rule of Civil Procedure 15(a), a party may only amend its pleading once as a matter of course. FED. R. CIV. P. 15(a)(1). After that party has amended its pleading once, the party may only further amend its pleading with the opposing party’s written consent or the court’s leave. FED. R. CIV. P. 15(a)(2). Plaintiffs have already filed a First Amended Complaint in this action, so unless they have obtained written consent from Defendants, Plaintiffs must file a regularly noticed motion asking for leave of court to file a Second Amended Complaint. As the hearing on Defendants’ Motion to Dismiss is set for October 5, 2009, Plaintiffs’ request to file a Second Amended Complaint, even if filed today, will not be ready for hearing by October 5 and will therefore not affect that hearing.Link to Order
Translation: Orly must file a motion requesting leave to amend (and the Court must grant that motion) before she can file her Second Amended Complaint.
Additionally, the October 5, 2009 hearing on the pending Motion to Dismiss the First Amended Complaint will proceed, and anything "new" in the Second Amended Complaint will not be considered on that date. (So her "preliminary response," along with Kreep's Opposition, will stand as the "opposition" to the Motion to Dismiss.)