Vann v. Wells Fargo Bank et al

Filing 18

ORDER re 17 Received Document filed by Keith A. Vann. Signed by Judge Hamilton on 4/2/2012. (pjhlc1, COURT STAFF) (Filed on 4/2/2012)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 KEITH AARON VANN, 12 13 Plaintiff, v. 14 ORDER WELLS FARGO BANK, et al., 15 No. C 12-1181 PJH Defendants. _______________________________/ 16 17 Plaintiff Keith Aaron Vann filed this action in the Superior Court of California, County 18 of Alameda, on February 24, 2012, against defendants Wells Fargo Bank (“Wells Fargo”) 19 and a number of other defendants. On March 9, 2012, the remaining defendants having 20 made no appearance, Wells Fargo removed the case, and on March 20, 2012, filed a 21 motion to dismiss the complaint for failure to state a claim, pursuant to Federal Rule of Civil 22 Procedure 12(b). 23 Plaintiff’s opposition to the motion was due on April 3, 2012. On April 2, 2012, 24 plaintiff attempted to file a document entitled “Verified Answer and Counterclaim/ First 25 Amended Complaint.” The document also bears a hand-written notation, “Opposition to 26 Motion to Dismiss.” The court cannot consider this document for the following reasons. 27 28 The document states that it is an “answer” to the motion to dismiss, and alleges seventeen “affirmative defenses,” plus what appear to be “counterclaims.” In federal court, 1 a plaintiff commences a civil action by filing a complaint. Fed. R. Civ. P. 3. Within 21 days 2 after being served with the summons and complaint, the defendant must serve either an 3 answer (including affirmative defenses) or a motion to dismiss. Fed. R. Civ. P. 12. The 4 plaintiff does not file an answer (or allege affirmative defenses), as it is the plaintiff who files 5 the complaint. The defendant may also file counterclaims or cross-claims. Fed. R. Civ. P. 6 13, 14. 7 Again, it is not the plaintiff who files counterclaims. In this district, when any motion is filed (including a motion to dismiss), unless the 8 parties stipulate to a different schedule, the non-moving party must file an opposition within 9 14 days of the date the motion is filed, and the moving party must file a reply within 7 days of the date the opposition is filed. Civ. L.R. 7-3. 11 For the Northern District of California United States District Court 10 Accordingly, if plaintiff wishes to oppose the motion, he must file an opposition that 12 addresses the arguments Wells Fargo has made. The “answer/counterclaim” that plaintiff 13 has attempted to file cannot serve as an opposition. The court will give plaintiff one 14 additional week to file an opposition. Thus, instead of April 3, 2012, the opposition will be 15 due on April 10, 2012. 16 In addition, a plaintiff may amend the complaint once, as of right, so long as he does 17 so within 21 days after serving the original complaint (or here, within 21 days after the date 18 the action was removed); or within 21 days after a responsive pleading or a Rule 12(b) 19 motion to dismiss has been filed. Fed. R. Civ. P. 15(a). Otherwise, a plaintiff must obtain 20 the defendant’s written permission or leave of court. Here, Wells Fargo filed its motion to 21 dismiss on March 20, 2012, and the deadline for plaintiff to file an amended complaint as of 22 right will be April 10, 2012. 23 If plaintiff wishes to file an amended complaint without obtaining the agreement of 24 Wells Fargo or leave of court, he must do so by the April 10, 2012 deadline. If he files an 25 amended complaint by that deadline, the original complaint will no longer have any force or 26 effect, and Wells Fargo will need to withdraw its motion and file a new motion (or answer) 27 that addresses the amended complaint. 28 The document that plaintiff has attempted to file as a “Counterclaim/ Amended 2 1 Complaint” cannot serve as an amended complaint because it is full of allegations about 2 “counterclaimant[s]” and “counterdefendants.” Plaintiff must allege claims against Wells 3 Fargo and the other defendants. 4 5 IT IS SO ORDERED. 6 Dated: April 2, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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