Cheung v. World Savings Bank et al

Filing 32

ORDER STRIKING FIRST AMENDED COMPLAINT AND DENYING MOTION TO DISMISS AS MOOT. Signed by Judge Richard Seeborg on 3/5/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 3/5/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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YIN KUEN CHEUNG
Plaintiff,

No. C 12-05016 RS

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v.
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WORLD SAVINGS BANK, et al.,

ORDER STRIKING FIRST AMENDED
COMPLAINT AND DENYING
MOTION TO DISMISS AS MOOT

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Defendants.
____________________________________/

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Yin Kuen Cheung, representing herself, filed a complaint against a host of defendants,

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including Wells Fargo Bank, N.A., as well as a lis pendens—both challenging the scheduled

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foreclosure of real property in Hercules, California for which Plaintiff alleged she had entered into a

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deed of trust with Wells Fargo. Wells Fargo successfully moved to dismiss the suit and to expunge

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the lis pendens. Plaintiff was given more than sixty days, with a deadline of January 15, 2013, to

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amend her complaint. Plaintiff then filed a pleading captioned “response to granting motion to

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dismiss and motion to expunge lis pendens,” which was construed as a motion for additional time to

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amend her complaint. That motion was denied because it sought additional time for a non-lawyer to

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prepare to act as Plaintiff’s attorney in this matter, which is impermissible. On January 15, 2013,

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Plaintiff’s sister Marina Cheung Yiu filed a purported “First Amended Complaint” in this action,

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representing herself. In it, she avers that she is the legal owner of the property. Wells Fargo next

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filed a Motion to Dismiss the First Amended Complaint for failure to state a claim pursuant to
NO. C 12-05016 RS
ORDER

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Federal Rule of Civil Procedure 12(b)(6). Neither Yin Kuen Cheung, nor Marina Cheung Yiu filed a

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response to the Motion to Dismiss. Marina Cheung Yiu did, however, apparently retain attorney

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Mark W. Lapham, who filed a document captioned “Request for Substitution of Plaintiff and

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Attorney” on February 28, 2013. These requests, construed as a Motion to Substitute Party and a

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Motion to Substitute Attorney, were not properly noticed pursuant to Civil Local Rule 7-1 and are

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therefore not properly before the Court. Accordingly, there is no need to consider them at this time.

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Pursuant to Federal Rule of Civil Procedure 12(f)(1), the Court sua sponte strikes the First

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Amended Complaint, filed by Marina Cheung Yiu. Plaintiff Yin Kuen Cheung was given leave to

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amend her complaint by January 15, 2013. Marina Cheung Yiu is not the plaintiff in this action and

For the Northern District of California

United States District Court

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thus, her filing of a First Amended Complaint is immaterial to this case. Pursuant to Civil Local

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Rule 7-1(b), Defendant’s Motion to Dismiss is suitable for disposition without oral argument and

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the hearing set for March 14, 2013 is vacated. Because the First Amended Complaint is not

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operative, Wells Fargo’s Motion to Dismiss the First Amended Complaint is rendered moot and is

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denied on that basis.

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Now that an attorney is apparently involved in this matter, the Court will allow Plaintiff Yin

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Kuen Cheung to file either an amended complaint or a properly noticed request to substitute plaintiff

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by April 5, 2013. If Plaintiff fails to do so, this case will be dismissed without further notice. Of

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course, assuming her claims are not barred by the statute of limitations, Marina Cheung Yiu is also

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free to file a separate case, rather than be substituted in as the plaintiff in this action.

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IT IS SO ORDERED.

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Dated: 3/5/13
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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NO. C 12-05016 RS
ORDER

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