Megediuk v. Wells Fargo Bank, NA et al

Filing 11

ORDER signed by Senior Judge Lawrence K. Karlton on 11/10/10 ORDERING that plf's 8 Motion for leave to file an Amended Complaint is GRANTED; plf shall file the Amended Complaint by 9:00 a.m. 11/12/10; dfts' 4 Motion to Dismiss and 5 Motion to Strike are DENIED w/o prejudice as moot. The 11/22/10 hearing is VACATED. (Benson, A.)

Megediuk v. Wells Fargo Bank, NA et al

Doc. 11

1 2 3 4 5 6 7 8 9 IVAN MEGEDIUK, 10 NO. CIV. S-10-2777 LKK/JFM 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff in this case Defendants. / brings numerous claims against v. ORDER WELLS FARGO BANK, N.A., et al., Plaintiff, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

defendants arising out of his home mortgage. On October 13, 2010, defendants Wachovia Mortgage and Golden West Savings Association Service Co. ("Golden West") removed the instant action to federal court on the grounds that this court has subject matter

jurisdiction over the case because it raises a federal question and because the parties are diverse. (ECF No. 1). On October 20, 2010, these same defendants filed a motion to dismiss all claims against them and a motion to strike portions of the complaint. (ECF Nos. 4, 5). These motions are set to be heard on November 22, 2010. 1
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Instead of filing an opposition or statement of non-opposition to the motions, plaintiff filed a motion to file an amended complaint on November 5, 2010. (ECF No. 8) While he failed to attach a proposed amended complaint, as required by E.D. Cal. Local Rule 137(c), he nonetheless specifically identified the changes he intends to make in the amended complaint. In particular, he requests leave to amend his complaint to remove all allegations concerning violations of the federal Truth in Lending Act. On the same day, plaintiff filed a motion to remand this case to state court, which is set to be heard on December 6, 2010. In this motion, plaintiff argues that the parties are not completely diverse because both he and defendant Golden West are citizens of California. Plaintiff cannot amend as a matter of course because he filed his motion to amend more than twenty-one days after serving his complaint. See Fed. R. Civ. P. 15(a)(1). Nonetheless, courts "should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). For the foregoing reasons, the court ORDERS as follows: (1) Plaintiff's motion for leave to file an amended

complaint (ECF No. 8) is GRANTED. Plaintiff shall file his amended complaint by 9:00 a.m. on Friday November 12, 2010. (2) Defendants' motions to dismiss and to strike (ECF Nos. 4, 5) are DENIED WITHOUT PREJUDICE as moot. The hearing

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on these motions, set for November 22, 2010, is VACATED. IT IS SO ORDERED. DATED: November 10, 2010.

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