Morris et al v. Bank of America et al

Filing 20

ORDER DENYING AS MOOT 9 MOTION to Dismiss Plaintiffs' Complaint filed by Bank of America, Federal National Mortgage Association, Motions terminated: 9 MOTION to Dismiss Plaintiffs' Complaint filed by Bank of America, Federal National Mortgage Association. Initial Case Management Conference set for 1/26/2010 01:00 PM.. Signed by Judge ARMSTRONG on 11/13/09. (lrc, COURT STAFF) (Filed on 11/16/2009)

1 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

JAMIE J. MORRIS and KATIE MORRIS, Plaintiffs, vs.

Case No: C 09-2849 SBA ORDER

BANK OF AMERICA, successor due to the 13 acquisition of Countrywide Home Loans and FEDERAL NATIONAL MORTGAGE 14 ASSOCIATION a/k/a FANNIE MAE, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Jamie J. Morris and Katie Morris ("Plaintiffs") filed the instant action against Defendants BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP (erroneously sued as Bank of America) ("BAC Servicing") and Federal National Mortgage Association ("FNMA") (collectively "Defendants"), on June 25, 2009. In response, Defendants filed a Motion to Dismiss pursuant to Fed. R. of Civ. P. 12(b)(6) and Motion to Strike pursuant to Fed. R. Civ. P. 12(f) (the "motions"). (Docket 9.) The motions are scheduled for hearing on November 17, 2009. On October 14, 2009, Plaintiffs filed a First Amended Complaint (Docket No. 15) and an opposition to Defendants' motion to dismiss (Docket No. 16). The opposition summarily stated that a First Amended Complaint had been filed and the motion to dismiss was rendered moot. A plaintiff can amend its complaint once as a matter of right before a responsive pleading is served. Fed.R.Civ.P. 15(a)(1)(A). A motion to dismiss is not a responsive pleading. Doe v. Defendant.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

United States, 58 F.3d 494, 497 (9th Cir. 1995). A motion to strike also does not constitute a responsive pleading. Farmer v. Ocwen Loan Servicing, LLC, 2009 WL 3424191, at *1 (E.D.Cal. 2009) (citing Neifeld v. Steinberg, 438 F.2d 423, 425 n. 3 (3d Cir.1971). Because the FAC is now the operative pleading before the Court, the motions, which were directed to the original complaint, are now moot. The Court is aware that Defendants have filed a motion to dismiss Plaintiffs' First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and a motion to strike pursuant to Fed. R. Civ. P. 12(f), which is presently scheduled for January 26, 2010. (Docket No. 18.) Accordingly, IT IS HEREBY ORDERED THAT: 1. Defendants' motion to dismiss and motion to strike (Docket 9) are DENIED AS MOOT; and 2. The Case Management Conference currently scheduled for November 17, 2009 shall be CONTINUED to January 26, 2010, at 1:00 p.m. and shall follow the hearing on Defendants' motion to dismiss Plaintiff's First Amended Complaint presently scheduled for the same day. The parties shall meet and confer prior to the conference and shall prepare a joint Case Management Conference Statement which shall be filed no later than ten (10) days prior to the Case Management Conference that complies with the Standing Order For All Judges Of The Northern District Of California and the Standing Order of this Court.

IT IS SO ORDERED. Dated:11/13/09 ___________________________ Hon. Saundra Brown Armstrong United States District Judge

-2-