Dumas v. First Northern Bank et al

Filing 26

ORDER signed by Senior Judge Lawrence K. Karlton on 10/15/10 GRANTING plaintiff leave of 7 days to file an Amended Complaint; DENYING without prejudice 7 and 15 Motions to Dismiss ; VACATING the Hearing on 15 Motion to Dismiss; Counsel for plaintiff is SANCTIONED $150.00 paid to the Clerk of the Court no later than 30 days from the date of this Order. (Williams, D) Modified on 10/18/2010 (Williams, D).

Dumas v. First Northern Bank et al

Doc. 26

1 2 3 4 5 6 7 8 9 THOMAS STEVENS DUMAS, 10 NO. CIV. S-10-1523 LKK/KJM 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants. / Plaintiff in this case brings numerous claims arising out of his home loan and mortgage. On May 5, 2010, plaintiff filed his complaint in state court. On June 16, 2010, defendant JP Morgan Chase Bank, N.A. ("JP Morgan") removed the complaint to this court. On June 22, 2010, JP Morgan filed a motion to dismiss all claims against it, which was set to be heard on August 9, 2010. The court vacated the hearing on this motion. Plaintiff timely opposed this motion. On September 7, 2010, defendant Paramount Residential Mortgage Group, Inc. ("Paramount") filed a motion to dismiss all claims 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Plaintiff, v. ORDER FIRST NORTHERN BANK, dba FIRST NORTHERN, et al.,

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

against it, which was set to be heard on October 12, 2010. Plaintiff did not timely oppose this motion. On October 4, 2010, the court ordered plaintiff to show cause in writing why sanctions of a fine of $150 and/or dismissal of this case should not issue. The court also continued the hearing on Paramount's motion until October 25, 2010. On October 5, 2010, plaintiff filed an amended complaint. He did not seek leave of this court or the written consent of defendants. On October 8, 2010, plaintiff timely filed a response to the order to show cause. Plaintiff's counsel stated that he decided to dismiss certain causes of action, add some causes of action, and add a new defendant. He reduced the number of claims from seventeen to eight. He also indicated that he believed that an amended complaint may be filed under Fed. R. Civ. P. 15(a) in place of an opposition to any motion to dismiss. This is not the case. Under Fed. R. Civ. P. 15(a)(1)(B), as amended December 1, 2009, a plaintiff may amend a complaint once as a matter of course within 21 days after service of a motion under Rule 12(b), (e), or (f) if no earlier responsive pleading has been filed. Here, the first motion under Rule 12(b) was filed on June 16, 2010, and plaintiff's right to amend as a matter of course expired on July 7, 2010. Rather, plaintiff may only amend its pleading with the defendants' written consent or leave of this court. Fed. R. Civ. P. 15(a)(2). The Rules instruct courts to "freely give leave when justice so requires." Id. For this reason, the court construes plaintiff's response to the order to show cause as a motion for leave to file an amended complaint. The court 2

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

grants the motion for leave. Plaintiff shall file his amended complaint within seven (7) days of the issuance of this order. Plaintiff's counsel has not, however, demonstrated good cause for his failure to file an opposition. The Federal Rules were amended almost a year ago. The Local Rules of the Eastern District of California clearly state that oppositions or statements of nonopposition must be filed fourteen days before a hearing. Local Rule 230(c). For the foregoing reasons, the court ORDERS as follows: (1) Plaintiff is granted leave of seven (7) days to file an amended complaint. (2) All pending motions to dismiss, ECF Nos. 7, 15, are DENIED without prejudice, as moot. (3) The hearing set on Paramount's motion, ECF No. 15, is VACATED. (4) Counsel for plaintiff is SANCTIONED in the amount of one hundred and fifty ($150.00) dollars. This sum shall be paid to the Clerk of the Court no later than thirty (30) days from the date of this order. Counsel shall file an affidavit accompanying the payment of this sanction which states that it is paid personally by counsel, out of personal funds, and is not and will not be billed, directly or indirectly, to the client or in any way made the responsibility of the client as attorneys' fees or costs. //// 3

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

IT IS SO ORDERED. DATED: October 15, 2010.

4