Federal Deposit Insurance Corporation v. Hsing

Filing 38

ORDER by Judge Yvonne Gonzalez Rogers Denying without Prejudice 33 Motion to Amend Cross-Complaint. The Court VACATES the hearing set for January 29, 2013. (fs, COURT STAFF) (Filed on 1/24/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FEDERAL DEPOSIT INSURANCE CORPORATION
as Receiver for BANKUNITED, F.S.B,
Plaintiff,

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United States District Court
Northern District of California

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ORDER DENYING WITHOUT PREJUDICE
MOTION OF DEFENDANT AND COUNTERCLAIMANT ERIC K. HSING TO AMEND HIS
CROSS-COMPLAINT

vs.
ERIC K. HSING, an individual d/b/a K.C. &
ASSOCIATES f/k/a K.C. APPRAISAL SERVICES,

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Case No.: 12-CV-1530 YGR

Defendant.
And cross-action.

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Defendant Eric K. Hsing, an individual d/b/a K.C. & Associates f/k/a K.C. Appraisal

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Services (“Hsing”) filed his “Answer to Complaint, Counterclaim, Joinder and Cross-Claim of

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Third Parties” (hereinafter, “Cross-Complaint”).1 Hsing has filed a motion seeking to amend the

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Cross-Complaint to substitute the true names and capacities of a person sued as a “Moe” defendant

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in the Cross-Complaint. (See Dkt. No. 33 [“Motion”].) Specifically, Hsing seeks to add Xun Sun

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aka Tommy Sun (“Tommy Sun”) as a defendant to the Cross-Complaint in place of Moe 1 on the

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theory that Tommy Sun was involved in the real estate transaction at issue in this litigation.

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Plaintiff Federal Deposit Insurance Corporation as Receiver for BankUnited, F.S.B. filed its
statement of non-opposition. (Dkt. No. 34.)

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The counterclaims against Federal Deposit Insurance Corporation were dismissed by this Court by
Order issued August 10, 2012. (Dkt. No. 25.)

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Having carefully considered the papers submitted and the pleadings in this action, and for

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the reasons set forth below, the Court hereby DENIES the Motion to Amend the Cross-Complaint. 2

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Leave to amend is liberally granted. Foman v. Davis, 371 U.S. 178, 182 (1962); Chodos

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v. West Pub. Co., 292 F.3d 992, 1003 (9th Cir. 2002) (leave to amend granted with “extreme

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liberality”). Any challenge to the proposed amendment is usually deferred until after it has been

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filed unless it is clear that such amendment would be futile. DCD Programs, 833 F.2d at 188; Saul

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v. United States, 928 F.2d 829, 843 (9th Cir.1991). Futility is shown only if “no set of facts can be

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proved under the amendment that would constitute a valid claim or defense.” Miller v. Rykoff-

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Sexton, Inc., 845 F.2d 209, 214 (9th Cir.1988); Abels v. JBC Legal Group, P.C., 229 F.R.D. 152,

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157 (N.D. Cal. 2005).

United States District Court
Northern District of California

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Here, amendment would be futile as there are no allegations against any “Moe” defendants,

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or specifically “Moe 1” in the Cross-Complaint. The only mention of “Moe” defendants comes in

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the caption and at page 21, where Hsing alleges that:

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The true names and capacities of the Cross-Defendants named herein as MOES 1100, inclusive, whether individual, corporate, associate or otherwise, are presently
unknown to the Hsing who therefore sue the said Cross-Defendants by such
fictitious names; and when the true names and capacities of such MOES 1
through 100, inclusive, are discovered, Hsing will ask leave to amend this Crossclaim to substitute the true names of the said Cross- Defendants.

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(Cross-Complaint at ¶5, page 21.) The allegations of cross-claims themselves, beginning at page

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22 of the Cross-Complaint are only directed at Fu Tong Sun, First Ohio Banc & Lending, Inc., and

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Bay Holdings, Inc. The Cross-Complaint states no basis for liability against any Moe defendant.

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Indeed the motion itself states only that: (1) that Fu Tong Sun, the borrower who is alleged

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to have defaulted on his mortgage, is the father of Tommy Sun; (2) Tommy Sun was “involved” in

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the mortgage transaction in that he paid for the appraisal. (Motion at 2.) The motion does not

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include any proposed amended complaint nor does it seek to add any new allegations against Moe 1

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or Tommy Sun.

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Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds this
motion appropriate for decision without oral argument. Accordingly, the Court VACATES the hearing set for
January 29, 2013.
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In the absence of any allegations against Moe 1, amending to substitute Tommy Sun for

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Moe 1 will not state a claim against him. Therefore the motion is DENIED without prejudice to

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making a proper showing in a new motion.

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IT IS SO ORDERED.
Date: January 24, 2013

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_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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