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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 11 For the Northern District of California United States District Court 10 YIN KUEN CHEUNG Plaintiff, No. C 12-05016 RS 12 v. 13 WORLD SAVINGS BANK, et al., ORDER STRIKING FIRST AMENDED COMPLAINT AND DENYING MOTION TO DISMISS AS MOOT 14 15 Defendants. ____________________________________/ 16 17 Yin Kuen Cheung, representing herself, filed a complaint against a host of defendants, 18 including Wells Fargo Bank, N.A., as well as a lis pendens—both challenging the scheduled 19 foreclosure of real property in Hercules, California for which Plaintiff alleged she had entered into a 20 deed of trust with Wells Fargo. Wells Fargo successfully moved to dismiss the suit and to expunge 21 the lis pendens. Plaintiff was given more than sixty days, with a deadline of January 15, 2013, to 22 amend her complaint. Plaintiff then filed a pleading captioned “response to granting motion to 23 dismiss and motion to expunge lis pendens,” which was construed as a motion for additional time to 24 amend her complaint. That motion was denied because it sought additional time for a non-lawyer to 25 prepare to act as Plaintiff’s attorney in this matter, which is impermissible. On January 15, 2013, 26 Plaintiff’s sister Marina Cheung Yiu filed a purported “First Amended Complaint” in this action, 27 representing herself. In it, she avers that she is the legal owner of the property. Wells Fargo next 28 filed a Motion to Dismiss the First Amended Complaint for failure to state a claim pursuant to NO. C 12-05016 RS ORDER 1 Federal Rule of Civil Procedure 12(b)(6). Neither Yin Kuen Cheung, nor Marina Cheung Yiu filed a 2 response to the Motion to Dismiss. Marina Cheung Yiu did, however, apparently retain attorney 3 Mark W. Lapham, who filed a document captioned “Request for Substitution of Plaintiff and 4 Attorney” on February 28, 2013. These requests, construed as a Motion to Substitute Party and a 5 Motion to Substitute Attorney, were not properly noticed pursuant to Civil Local Rule 7-1 and are 6 therefore not properly before the Court. Accordingly, there is no need to consider them at this time. 7 Pursuant to Federal Rule of Civil Procedure 12(f)(1), the Court sua sponte strikes the First 8 Amended Complaint, filed by Marina Cheung Yiu. Plaintiff Yin Kuen Cheung was given leave to 9 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 10 thus, her filing of a First Amended Complaint is immaterial to this case. Pursuant to Civil Local 11 Rule 7-1(b), Defendant’s Motion to Dismiss is suitable for disposition without oral argument and 12 the hearing set for March 14, 2013 is vacated. Because the First Amended Complaint is not 13 operative, Wells Fargo’s Motion to Dismiss the First Amended Complaint is rendered moot and is 14 denied on that basis. 15 Now that an attorney is apparently involved in this matter, the Court will allow Plaintiff Yin 16 Kuen Cheung to file either an amended complaint or a properly noticed request to substitute plaintiff 17 by April 5, 2013. If Plaintiff fails to do so, this case will be dismissed without further notice. Of 18 course, assuming her claims are not barred by the statute of limitations, Marina Cheung Yiu is also 19 free to file a separate case, rather than be substituted in as the plaintiff in this action. 20 21 IT IS SO ORDERED. 22 23 24 Dated: 3/5/13 RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 25 26 27 28 NO. C 12-05016 RS ORDER 2

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