Federal Deposit Insurance Corporation v. Hsing

Filing 45

ORDER by Judge Yvonne Gonzalez Rogers granting 40 Motion to Amend Cross-Complaint;Defendant and Counterclaimant is required to E-FILE the amended document by 3/15/2013.(The 3/12/2013 Hearing date is VACATED.) (fs, COURT STAFF) (Filed on 3/11/2013)

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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 GRANTING REVISED MOTION OF DEFENDANT AND COUNTER-CLAIMANT 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”). Hsing’s previous motion having been denied 20 without prejudice, he has filed a revised motion seeking to amend the Cross-Complaint to substitute 21 the true names and capacities of a person sued as a “Roe” defendant in the Cross-Complaint and to 22 join a party alleged to be necessary for complete relief. (See Dkt. No. 40.) Specifically, Hsing 23 seeks to add Xun Sun aka Tommy Sun as a defendant to the Cross-Complaint, and to amend the 24 Cross-Complaint to allege additional allegations to the effect that Xun Sun, aka Tommy Sun (son 25 of Cross-Defendant Fu Tong Sun) was involved in the real estate transaction at issue in this 26 litigation. 27 28 Plaintiff Federal Deposit Insurance Corporation as Receiver for BankUnited, F.S.B. has not filed an opposition. 1 Having carefully considered the papers submitted and the pleadings in this action, and for 2 the reasons set forth below, the Court hereby GRANTS the Revised Motion to Amend the Cross- 3 Complaint. 4 Leave to amend is liberally granted. Foman v. Davis, 371 U.S. 178, 182 (1962); Chodos 5 v. West Pub. Co., 292 F.3d 992, 1003 (9th Cir. 2002) (leave to amend granted with “extreme 6 liberality”). Any challenge to the proposed amendment is usually deferred until after it has been 7 filed unless it is clear that such amendment would be futile. DCD Programs, 833 F.2d at 188; Saul 8 v. United States, 928 F.2d 829, 843 (9th Cir.1991). Futility is shown only if “no set of facts can be 9 proved under the amendment that would constitute a valid claim or defense.” Miller v. RykoffSexton, Inc., 845 F.2d 209, 214 (9th Cir.1988); Abels v. JBC Legal Group, P.C., 229 F.R.D. 152, 11 United States District Court Northern District of California 10 157 (N.D. Cal. 2005). 12 Thus, the Court GRANTS the motion to amend the Cross-Complaint. Hsing shall file his 13 amended Cross-Complaint, attached as the first part of Exhibit C to the Revised Declaration of 14 Brian M. Sanders (Dkt. 40-1) no later than March 15, 2013. 15 IT IS SO ORDERED. Date: March 11, 2013 16 17 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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