Brink v. Alternative Loan Trust 2006-39CB, et al.

Filing 30

ORDER signed by Magistrate Judge Dale A. Drozd on 11/12/13: Plaintiff's motion for leave to file the amended complaint 28 is granted. The amended complaint filed November 5, 2013 29 is now the operative complaint. Defendants' motion to dismiss 21 , re-noticed for hearing before the undersigned 26 , is denied without prejudice as having been rendered moot. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID L. BRINK,

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No. 2:13-cv-0862 LKK DAD PS

Plaintiff,
v.

ORDER

ALTERNATIVE LOAN TRUST 200639CB; BANK OF NEW YORK MELLON,
Defendants.

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Plaintiff David Brink, proceeding pro se, commenced this action on May 2, 2013,

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by filing a complaint and paying the required filing fee. On August 13, 2013, defendants

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executed a Waiver of Service of Summons. (Doc. No. 14.) On November 5, 2013, plaintiff filed

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a motion for leave to file an amended complaint (Doc. No. 28), and an amended complaint. (Doc.

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No. 29.) In moving for leave to amend, plaintiff asserts that he “has identified additional claims

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that need to be added to the complaint . . . .” (Doc. No. 28 at 2.)

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Under Rule 15 of the Federal Rules of Civil Procedure, plaintiff may amend his

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complaint once as a matter of course within twenty-one days after serving it or twenty-one days

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after service of a responsive pleading or motion pursuant to Rule 12(b). See FED. R. CIV. P. 15.

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In all other cases, plaintiff may amend his complaint with defendant’s written consent or the

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court’s leave. Id. “The court should freely give leave when justice so requires.” In light of this
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lenient standard, the court will grant plaintiff’s motion for leave to file an amended complaint.

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On November 6, 2013, defendants filed a motion to dismiss plaintiff’s original

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complaint.1 (Doc. Nos. 21 & 26.) Accordingly, defendants’ motion will be denied without

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prejudice as having been rendered moot by this order granting leave to amend.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s November 5, 2013 motion for leave to file the amended complaint

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(Doc. No. 28) is granted;

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2. The amended complaint filed November 5, 2013 (Doc. No. 29) is now the
operative complaint; and
3. Defendants’ November 6, 2013 motion to dismiss (Doc. No. 21), re-noticed for

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hearing before the undersigned (Doc. No. 26), is denied without prejudice as having been

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rendered moot.

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Dated: November 12, 2013

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DAD:6
Ddad1\orders.pro se\brink0862.mtd.moot.ord.docx

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Although plaintiff filed his motion for leave to amend and his proposed amended complaint on
November 5, 2013, those documents were not entered into the court’s CMECF system until
November 6, 2013, the same day defendants filed the motion to dismiss.
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