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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 9 FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for BANKUNITED, F.S.B, Plaintiff, 10 United States District Court Northern District of California 11 12 13 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, 14 15 Case No.: 12-CV-1530 YGR Defendant. And cross-action. 16 17 Defendant Eric K. Hsing, an individual d/b/a K.C. & Associates f/k/a K.C. Appraisal 18 Services (“Hsing”) filed his “Answer to Complaint, Counterclaim, Joinder and Cross-Claim of 19 Third Parties” (hereinafter, “Cross-Complaint”).1 Hsing has filed a motion seeking to amend the 20 Cross-Complaint to substitute the true names and capacities of a person sued as a “Moe” defendant 21 in the Cross-Complaint. (See Dkt. No. 33 [“Motion”].) Specifically, Hsing seeks to add Xun Sun 22 aka Tommy Sun (“Tommy Sun”) as a defendant to the Cross-Complaint in place of Moe 1 on the 23 theory that Tommy Sun was involved in the real estate transaction at issue in this litigation. 24 25 Plaintiff Federal Deposit Insurance Corporation as Receiver for BankUnited, F.S.B. filed its statement of non-opposition. (Dkt. No. 34.) 26 27 28 1 The counterclaims against Federal Deposit Insurance Corporation were dismissed by this Court by Order issued August 10, 2012. (Dkt. No. 25.) 1 Having carefully considered the papers submitted and the pleadings in this action, and for 2 the reasons set forth below, the Court hereby DENIES the Motion to Amend the Cross-Complaint. 2 3 Leave to amend is liberally granted. Foman v. Davis, 371 U.S. 178, 182 (1962); Chodos 4 v. West Pub. Co., 292 F.3d 992, 1003 (9th Cir. 2002) (leave to amend granted with “extreme 5 liberality”). Any challenge to the proposed amendment is usually deferred until after it has been 6 filed unless it is clear that such amendment would be futile. DCD Programs, 833 F.2d at 188; Saul 7 v. United States, 928 F.2d 829, 843 (9th Cir.1991). Futility is shown only if “no set of facts can be 8 proved under the amendment that would constitute a valid claim or defense.” Miller v. Rykoff- 9 Sexton, Inc., 845 F.2d 209, 214 (9th Cir.1988); Abels v. JBC Legal Group, P.C., 229 F.R.D. 152, 10 157 (N.D. Cal. 2005). United States District Court Northern District of California 11 Here, amendment would be futile as there are no allegations against any “Moe” defendants, 12 or specifically “Moe 1” in the Cross-Complaint. The only mention of “Moe” defendants comes in 13 the caption and at page 21, where Hsing alleges that: 14 17 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. 18 (Cross-Complaint at ¶5, page 21.) The allegations of cross-claims themselves, beginning at page 19 22 of the Cross-Complaint are only directed at Fu Tong Sun, First Ohio Banc & Lending, Inc., and 20 Bay Holdings, Inc. The Cross-Complaint states no basis for liability against any Moe defendant. 15 16 21 Indeed the motion itself states only that: (1) that Fu Tong Sun, the borrower who is alleged 22 to have defaulted on his mortgage, is the father of Tommy Sun; (2) Tommy Sun was “involved” in 23 the mortgage transaction in that he paid for the appraisal. (Motion at 2.) The motion does not 24 include any proposed amended complaint nor does it seek to add any new allegations against Moe 1 25 or Tommy Sun. 26 27 28 2 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. 2 1 In the absence of any allegations against Moe 1, amending to substitute Tommy Sun for 2 Moe 1 will not state a claim against him. Therefore the motion is DENIED without prejudice to 3 making a proper showing in a new motion. 4 IT IS SO ORDERED. Date: January 24, 2013 5 6 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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