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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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KEITH AARON VANN,

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Plaintiff,
v.

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ORDER

WELLS FARGO BANK, et al.,

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No. C 12-1181 PJH

Defendants.
_______________________________/

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Plaintiff Keith Aaron Vann filed this action in the Superior Court of California, County

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of Alameda, on February 24, 2012, against defendants Wells Fargo Bank (“Wells Fargo”)

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and a number of other defendants. On March 9, 2012, the remaining defendants having

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made no appearance, Wells Fargo removed the case, and on March 20, 2012, filed a

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motion to dismiss the complaint for failure to state a claim, pursuant to Federal Rule of Civil

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Procedure 12(b).

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Plaintiff’s opposition to the motion was due on April 3, 2012. On April 2, 2012,

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plaintiff attempted to file a document entitled “Verified Answer and Counterclaim/ First

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Amended Complaint.” The document also bears a hand-written notation, “Opposition to

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Motion to Dismiss.” The court cannot consider this document for the following reasons.

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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,

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a plaintiff commences a civil action by filing a complaint. Fed. R. Civ. P. 3. Within 21 days

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after being served with the summons and complaint, the defendant must serve either an

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answer (including affirmative defenses) or a motion to dismiss. Fed. R. Civ. P. 12. The

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plaintiff does not file an answer (or allege affirmative defenses), as it is the plaintiff who files

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the complaint. The defendant may also file counterclaims or cross-claims. Fed. R. Civ. P.

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13, 14.

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Again, it is not the plaintiff who files counterclaims.

In this district, when any motion is filed (including a motion to dismiss), unless the

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parties stipulate to a different schedule, the non-moving party must file an opposition within

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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.

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For the Northern District of California

United States District Court

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Accordingly, if plaintiff wishes to oppose the motion, he must file an opposition that

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addresses the arguments Wells Fargo has made. The “answer/counterclaim” that plaintiff

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has attempted to file cannot serve as an opposition. The court will give plaintiff one

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additional week to file an opposition. Thus, instead of April 3, 2012, the opposition will be

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due on April 10, 2012.

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In addition, a plaintiff may amend the complaint once, as of right, so long as he does

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so within 21 days after serving the original complaint (or here, within 21 days after the date

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the action was removed); or within 21 days after a responsive pleading or a Rule 12(b)

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motion to dismiss has been filed. Fed. R. Civ. P. 15(a). Otherwise, a plaintiff must obtain

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the defendant’s written permission or leave of court. Here, Wells Fargo filed its motion to

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dismiss on March 20, 2012, and the deadline for plaintiff to file an amended complaint as of

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right will be April 10, 2012.

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If plaintiff wishes to file an amended complaint without obtaining the agreement of

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Wells Fargo or leave of court, he must do so by the April 10, 2012 deadline. If he files an

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amended complaint by that deadline, the original complaint will no longer have any force or

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effect, and Wells Fargo will need to withdraw its motion and file a new motion (or answer)

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that addresses the amended complaint.

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The document that plaintiff has attempted to file as a “Counterclaim/ Amended
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Complaint” cannot serve as an amended complaint because it is full of allegations about

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“counterclaimant[s]” and “counterdefendants.” Plaintiff must allege claims against Wells

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Fargo and the other defendants.

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IT IS SO ORDERED.

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Dated: April 2, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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