Foster v. SCME Mortgage Bankers, et al

Filing 83

ORDER signed by Judge William B. Shubb on 6/17/2010 DENYING 39 Defendants' Motion to Strike ; and GRANTING 50 Plaintiff's Motion to Amend the Complaint. Plaintiff's First Amended Complaint (Docket No. 33) filed 4/28/2010, and attached as Exhibit A to plaintiff's motion for leave to amend (Docket No. 50), is hereby considered the operative Complaint in this action. (Kirksey Smith, K)

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 1 GARY L. FOSTER, Plaintiff, v. SCME MORTGAGE BANKERS, INC. a California corporation; CLEVER KEY FINANCIAL, LLC, a California limited liability company; WEST COAST MORTGAGE, a business entity of unknown form, HOMECOMING FINANCIAL, LLC, a Delaware limited liability company f/k/a HOMECOMINGS FINANCIAL NETWORK, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. a Delaware corporation; AURORA LOAN SERVICERS, LLC a Delaware limited liability company; CAL-WESTERN RECONVEYANCE CORPORATION, a California corporation; FREDERICK WINSTON WILLIAMS II, an individual; and DEBORAH DIAZ, an individual, Defendants. / UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----

NO. CIV. 2:10-518 WBS GGH ORDER RE: MOTION FOR LEAVE TO AMEND COMPLAINT AND MOTION TO STRIKE

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Because oral argument will not be of assistance to the court in ruling on defendants' motion to strike and plaintiff's motion for leave to amend, the hearing date of June 21, 2010 for those motions is VACATED pursuant to Local Rule 230(g) and the court will take the motions under submission without oral argument. Federal Rule of Civil Procedure 15(a) provides that plaintiffs may amend their complaint once as a matter of course within twenty-one days of, inter alia, the service of a Rule 12(b) motion by the defendant. Fed. R. Civ. P. 15(a)(1). In all

other circumstances, the plaintiff must receive the opposing party's written consent or leave of the court before amending his complaint. Fed. R. Civ. P. 15(a)(2). Courts evaluating a motion

for leave to amend "should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Plaintiff filed a First Amended Complaint ("FAC") on April 28, 2010 (Docket No. 33), twenty-three days after defendants Mortgage Electronic Registration Systems, Inc. ("MERS") and Aurora Loan Services ("Aurora") filed a motion to dismiss (Docket No. 19) and without first obtaining a stipulation from all parties or leave of the court pursuant to Rule 15(a)(2). MERS and Aurora filed a motion to strike plaintiff's FAC pursuant to Rule 12(f) for failure to obtain a stipulation of the parties (Docket No. 39), and plaintiff subsequently filed a motion for leave to amend his Complaint. (Docket No. 50.) While the FAC

repeats much of plaintiff's original Complaint, it adds considerable more detail to plaintiff's Truth in Lending Act, 15 U.S.C. § 1601, cause of action and deletes plaintiff's cause of 2

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action for violation of California Civil Code section 2943. FAC.)

(See

At this early stage in the proceedings, any prejudice or The court will therefore grant

delay to defendants is minimal.

plaintiff's motion for leave to amend his Complaint. IT IS THEREFORE ORDERED that plaintiff's motion for leave to amend his Complaint be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that defendants' motion to strike is DENIED. Plaintiff's First Amended Complaint (Docket No. 33) filed April 28, 2010, and attached as Exhibit A to plaintiff's motion for leave to amend (Docket No. 50), is hereby considered the operative Complaint in this action. DATED: June 17, 2010

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