Bardin v. Bank Of America et al

Filing 15

ORDER signed by Judge Garland E. Burrell, Jr. on 9/17/2009 ORDERING 11 Since Defendants' pending motions do not address the operative pleading, the motions are DENIED AS MOOT. The Defendants have 10 days from the date of this Order to respond to the Plaintiff's first amended complaint. (Reader, L)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter was determined to be suitable for decision without oral argument. E.D. Cal. R. 78-230(h). 1
*

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

WILLIAM BARDIN, Plaintiff, v. BANK OF AMERICA, AMERICA HOMEKEY, INC., MORTGAGE ELECTRONIC, REGISTRATION SYSTEMS, INC., U.S. FUNDING GROUP, INC. AND JOHN MORRIS, and DOES 1-20 inclusive Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) )

2:09-cv-01592-GEB-KJM ORDER*

On June 8, 2009, Plaintiff William Bardin filed a complaint against Bank of America, America Homekey, Inc., Mortgage Electronic Registration Systems, Inc., U.S. Funding Group, Inc., John Morris and Does 1-20 (Docket No. 1.) On July 7, 2009, Defendant America Homekey On August 6,

filed an answer to Plaintiff's complaint (Docket No. 9).

2009, Defendants Bank of America and Mortgage Electronic Registration Systems, Inc. filed a Rule 12(b)(6) motion to dismiss and a Rule 12(f) motion to strike portions of Plaintiff's complaint (Docket No. 11.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

However, on September 11, 2009, the Plaintiff filed a first amended complaint (Docket No. 14.) Under Rule 15(a), "[a] party may amend its pleading once as a matter of course: before being served with a responsive pleading...." Fed. R. Civ. P. 15(a)(1)(A). When a responsive pleading has been

filed, "a party may amend its pleadings only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2).

Defendant America Homekey Inc.'s filing of an answer therefore terminated the Plaintiff's ability to amend his complaint as a matter of course. As the Plaintiff did not seek leave of the court or obtain

written consent of the Defendants, the first amended complaint is inoperative. However, since it is evident that Plaintiff seeks to amend his complaint, in the interests of judicial economy and efficiency, the Plaintiff is granted leave to amend his original complaint nunc pro tunc as of the date the first amended complaint was filed. Consequently, the Plaintiff's first amended complaint is now the operative pleading. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474

(9th Cir. 1997)(stating that an amended complaint supersedes the original complaint). Since Defendants' pending motions do not address The

the operative pleading and the motions are denied as moot.

Defendants have 10 days from the date of this Order to respond to the Plaintiff's first amended complaint. Dated: September 17, 2009 See Fed. R. Civ. P. 15(a)(3).

GARLAND E. BURRELL, JR. United States District Judge

2