Rubio v. U.S. Bank N.A.

Filing 13

ORDER Re: Motion to Dismiss and Proposal to Amend Complaint. Signed by Judge Laurel Beeler on 1/03/2014. (lblc1S, COURT STAFF) (Filed on 1/3/2014)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
EDGARDO C. RUBIO,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,
v.

No. C 13-05752 LB
ORDER RE: MOTION TO DISMISS
AND AMENDED COMPLAINT

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U.S. BANK N.A., AS TRUSTEE FOR THE
NOTEHOLDERS OF AEGIS ASSET
BACKED SECURITIES TRUST 2005-3;
OCWEN LOAN SERVICING LLC;
WESTERN PROGRESSIVE, LLC; and
DOES 1 - 100, Inclusive.
Defendants.
_____________________________________/

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Defendants removed this action from San Francisco County Superior Court on December 12,

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2013. See Notice of Removal, ECF No. 1.1 On December 19, 2013, Defendants filed a motion to

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dismiss Plaintiff Edgardo Rubio’s claims. See Motion to Dismiss, ECF No. 7. Defendants noticed

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their motion for a February 6, 2014 hearing and under the local rules, Rubio’s opposition brief was

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due on January 2, 2014. See Docket. Rubio did not file an opposition brief. Instead, on January 2,

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2014, Rubio filed a “Notice of Intent to File an Amended Complaint,” in which he states that he will

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file an amended complaint “no later than February 5, 2014” in advance of the February 6, 2014

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hearing. See ECF No. 12.

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page number at the top of the page.
C 13-05752 LB
ORDER

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Federal Rule of Civil Procedure 15(a)(1)(B) permits a party to amend a complaint once as a

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matter of course within “21 days after service of a motion under Rule 12(b).” Otherwise, “a party

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may amend its pleading only with the opposing party’s written consent or the court’s leave. The

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court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

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Here, Defendants filed their Rule 12(b) motion on December 19, 2013. Thus, the deadline for
Rubio to file an amended complaint as of right is January 9 – not February 5.

amended complaints early in the litigation, the court directs the parties to meet and confer by the

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close of business on January 6, 2014, to determine whether they can stipulate to allow Rubio to file

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an amended complaint after the January 9 deadline. By January 9, 2014, Rubio should file either:

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(1) an amended complaint, (2) a stipulation extending the deadline for him to file his amended

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For the Northern District of California

In the interest of judicial efficiency and in light of the lenient federal standard for permitting

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UNITED STATES DISTRICT COURT

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complaint, (3) a notice of his intent to file a motion for leave to file an amended complaint and a

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proposed timeline for that motion, or (4) a status update informing the court about his opposition to

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Defendants’ motion. The parties also may set the matter for a telephonic case management

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conference on January 16, 2014 via Court Call by contacting courtroom deputy Lashanda Scott at

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[phone].

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IT IS SO ORDERED.
Dated: January 3, 2014

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_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 13-05752 LB
ORDER

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