Jimenez v. Homecomings Financial LLC

Filing 40

ORDER by Judge Maria-Elena James (1) Denying as moot and without prejudice 17 Motion to Dismiss; (2) Granting 30 Plaintiff's Motion for Leave to File Second Amended Complaint; (3) Ordering 31 Second Amended Complaint deemed filed; (4) setting briefing schedule and hearing date. (mejlc3, COURT STAFF) (Filed on 6/11/2009) (Additional attachment(s) added on 6/11/2009: # 1 Certtificate of Service) (bjt, COURT STAFF).

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For the Northern District of California

UNITED STATES DISTRICT COURT Northern District of California
MARIA C. JIMENEZ, v. Plaintiff, No. C 09-00146 MEJ ORDER DENYING MOTION TO DISMISS [Dkt. #17]; ORDER GRANTING PLAINTIFF'S REQUEST TO FILE SECOND AMENDED COMPLAINT [Dkt. #30]; ORDER SETTING BRIEFING SCHEDULE AND HEARING DATE

HOMECOMINGS FINANCIAL, Defendant. _____________________________________/

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I. INTRODUCTION Pending before the Court is Defendant Homecomings Financial's Motion to Dismiss Plaintiff's First Amended Complaint for Failure to State a Claim (Dkt. #17). After Defendant filed its Motion, on May 15, 2009, Plaintiff pro se Maria Jimenez filed a Motion to Amend Complaint (Dkt. #30) and lodged a proposed Amended Complaint (Dkt. #31, referred to herein as the proposed "Second Amended Complaint"). In light of Defendant's pending Motion to Dismiss, the Court denied Plaintiff's Motion to Amend without prejudice. (Dkt. #32). On June 11, 2009, the Court held a hearing on Defendant's Motion. The Court now rules as follows. II. DISCUSSION In its Motion, Defendant argues that: (1) Plaintiff's First Amended Complaint fails to conform to the pleading requirements set forth in Rule 8 of the Federal Rules of Civil Procedure; and (2) the First Amended Complaint fails to state a claim upon which this Court can grant relief. Reviewing Plaintiff's First Amended Complaint (Dkt. #13), it is 48 pages long (excluding exhibits) and mainly consists of legal argument and citations to various legal authorities and legislative documents. In her First Amended Complaint, Plaintiff asserts two claims. The first claim is labeled, "Quiet Title, Abuse of Process," and contains sixteen subparts, purportedly asserting other claims.

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For the Northern District of California

The second claim is labeled, "Slander of Title, Fraudulent Conversion," and contains two subparts. Defendant argues that neither of Plaintiff's claims, or any of their subparts, state a viable claim for relief. In reviewing a 12(b)(6) motion, the Court must examine whether Plaintiff could cure any deficiencies in her allegations by amending her pleading. See DeSoto v. Yellow Freight Sys., 957 F.2d 655, 658, (9th Cir. 1992). With that in mind, the Court notes that the Second Amended Complaint that Plaintiff submitted on May 15th sets forth four specific claims for relief: (1) quiet title; (2) wrongful foreclosure; (3) violation of California Business and Professions Code § 17200; and (4) fraudulent misrepresentation. The proposed Second Amended Complaint also sets forth short and plain factual allegations in support of each claim. Taken together, because Plaintiff's proposed Second Amended Complaint conforms to Rule 8's pleading requirements and sets forth new, refined factual allegations and claims for relief, the Court finds good cause to amend its prior ruling denying without prejudice Plaintiff's Motion for Leave to File Amended Complaint (Dkt. #32). See Fed. R. Civ. P. 60(b)(6). The Court will therefore grant Plaintiff's Motion for Leave to file the Second Amended Complaint (Dkt. #30). Further, once filed, the Second Amended Complaint supercedes Plaintiff's First Amended Complaint. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). Consequently, Defendant's pending Motion to Dismiss Plaintiff's First Amended Complaint is rendered moot. The Court will allow Defendant to file a new motion with respect to Plaintiff's Second Amended Complaint in accordance with the deadlines set forth below. III. CONCLUSION For the reasons stated above, the Court GRANTS Plaintiff's Motion for Leave to file her proposed Second Amended Complaint (Dkt. #30). Plaintiff's Second Amended Complaint (Dkt. #31) shall be deemed filed as of the filing date of this Order. Further, the Court DENIES AS MOOT Defendant's Motion to Dismiss (Dkt. #17) and WITHOUT PREJUDICE to Defendant filing a new motion to dismiss Plaintiff's Second Amended Complaint. 2

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1 2 3 4 5 6 7 8 9 10 11 UNITED UNITED STATES DISTRICT COURT 12
For the Northern District of California

Defendant shall file any motion to dismiss Plaintiff's Second Amended Complaint by July 13, 2009. Plaintiff shall file her Opposition by August 3, 2009. Defendant shall file its Reply by August 10, 2009. The Court sets this matter for hearing on August 13, 2009 at 10:00 a.m. in Courtroom B. IT IS SO ORDERED.

Dated: June 11, 2009

_______________________________ Maria-Elena James United States Magistrate Judge

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