On November 23, 2015, in Ramirez v. Cty. of San Bernardino, the US Court of Appeals for the Ninth Circuit held that a party does not need to exhaust the right to file an amended complaint once as a matter of course under Federal Rule of Civil Procedure (FRCP) 15(a)(1) before amending based on the opposing party's written consent or leave of the court under FRCP 15(a)(2). The Court also held that a party may amend under either FRCP 15(a)(1) or FRCP 15(a)(2) in whatever order the party sees fit, provided the party otherwise complies with the respective requirements of the rule. ( (9th Cir. Nov. 23, 2015).)

The plaintiff filed a civil rights complaint against the County of San Bernardino and others in California state court. The case was removed to the US District Court for the Central District of California, and on April 29, 2013, the plaintiff and the defendants agreed that the plaintiff could amend his complaint within 20 days. The district court shortened the deadline to ten days and signed the order. The plaintiff timely filed his first amended complaint.

On May 22, 2013, the defendants moved to dismiss, and a hearing was calendared for June 24, 2013. Under Central District of California Local Rule 7-9, the plaintiff was required to file either an opposition to the motion no later than 21 days before the hearing date, or a written statement that he was not going to oppose the motion. Instead of a response to the motion, the plaintiff filed a second amended complaint on June 12, 2013. On June 19, the district court granted the motion to dismiss based on the plaintiff’s failure to comply with Local Rule 7-9. The plaintiff filed a motion for reconsideration under FRCP 59(e) and 60(b), arguing that his second amended complaint was appropriately filed under FRCP 15(a)(1) and that it superseded the first amended complaint, making the motion to dismiss moot. The district court denied the motion. It ruled that the plaintiff was not entitled to file the second amended complaint because he did not seek consent or leave of the court, and he had already amended the complaint once as a matter of course by virtue of his first amended complaint. The plaintiff appealed.

The Ninth Circuit reversed, and held that the plaintiff’s first amended complaint had not been filed “as a matter of course” under FRCP 15(a)(1), but rather, was filed with the opposing party's written consent under FRCP 15(a)(2). Moreover, the Court held that FRCP 15(a) was not ambiguous, and that under the rule, a party could either or both, and in any sequence:

(FRCP 15(a)(1), (2).)

Although the plaintiff's first amended complaint was filed first in time with the defendants' consent, that did not waive or exhaust his right to file an amended pleading once as a matter of course within the deadlines set forth in FRCP 15(a)(1).

The Ninth Circuit also held that the district court erred in allowing Local Rule 7-12, which required some type of written response to the defendants' motion to dismiss from the plaintiff, to trump the conflicting FRCP 15, which, given his remaining right to timely amend under FRCP 15(a)(1) did not require the plaintiff to respond to the motion to dismiss.