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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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 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,

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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”). Hsing’s previous motion having been denied

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without prejudice, he has filed a revised motion seeking to amend the Cross-Complaint to substitute

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

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join a party alleged to be necessary for complete relief. (See Dkt. No. 40.) Specifically, Hsing

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seeks to add Xun Sun aka Tommy Sun as a defendant to the Cross-Complaint, and to amend the

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Cross-Complaint to allege additional allegations to the effect that Xun Sun, aka Tommy Sun (son

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of Cross-Defendant Fu Tong Sun) was involved in the real estate transaction at issue in this

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litigation.

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Plaintiff Federal Deposit Insurance Corporation as Receiver for BankUnited, F.S.B. has not
filed an opposition.

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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 GRANTS the Revised Motion to Amend the Cross-

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Complaint.

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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. RykoffSexton, 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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United States District Court
Northern District of California

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157 (N.D. Cal. 2005).

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Thus, the Court GRANTS the motion to amend the Cross-Complaint. Hsing shall file his

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amended Cross-Complaint, attached as the first part of Exhibit C to the Revised Declaration of

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Brian M. Sanders (Dkt. 40-1) no later than March 15, 2013.

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IT IS SO ORDERED.
Date: March 11, 2013

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_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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