Can a motion for leave to file a further amended complaint, accompanied by affidavits, be considered a first amendment?

However, it is unnecessary to debate this since the court had before it plaintiffs' motion for leave to file a further amended complaint, accompanied by affidavits, and the defendants' opposing affidavits. It could be argued that, in view of the minor nature of the first amendment, the further amended complaint was in practical effect a first amendment, which, under F.R.Civ.P. 15(a), is allowable as a matter of course at any time before a responsive pleading is filed. However, we need not consider this since defendants' counsel did not oppose the grant of leave to file the further amended complaint. J.App. at 72-73. Under the plain terms of F.R.Civ.P. 15(a) this was thus before the court, without need for any action on its part, and we should treat the case on that basis. See Fern v. United States, 213 F.2d 674, 677 (9 Cir.1954).