Brockington v. J.P. Morgan Chase Bank N.A. et al

Filing 24

ORDER by Judge Whyte granting 10 Motion to Dismiss with leave to amend; denying 14 Motion for Preliminary Injunction (rmwlc3, COURT STAFF) (Filed on 4/14/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH LEAVE TO AMEND, DENYING DEFENDANT'S REQUESTS FOR JUDICIAL NOTICE, DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION; AND SETTING FURTHER SCHEDULE--No. C-08-05795 RMW HRL TER

E-FILED on 4/14/09

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

KIMBERLY A. BROCKINGTON, also known as KIMBERLY A. SCHATZ, and LALLY BROCKINGTON, Plaintiffs, v. J.P. MORGAN CHASE BANK, N.A., a National Banking Association, NDEX WEST, LLC, a Texas Limited Liability Company, and DOES 1 to 20, inclusive, Defendants.

No. C-08-05795 RMW HRL

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH LEAVE TO AMEND, DENYING DEFENDANT'S REQUESTS FOR JUDICIAL NOTICE, DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION; AND SETTING FURTHER SCHEDULE [Re Docket Nos. 10, 11, 14 and 16]

On March 20, 2009, the court heard defendant J.P. Morgan Chase Bank N.A.'s motion to dismiss and plaintiffs' motion for preliminary injunction. Having considered the papers submitted by the parties and the arguments of counsel, and for good cause appearing and for the reasons stated at the hearing, IT IS HEREBY ORDERED as follows: 1. Defendant's Motion to Dismiss is GRANTED, with leave to amend. Defendant's Requests for Judicial Notice are DENIED.

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2.

Plaintiffs' Motion for Preliminary Injunction is DENIED. Given the dismissal of the complaint, plaintiffs have not carried their burden of establishing a likelihood of success on the merits sufficient to support an injunction.

3.

Defendant shall produce its loan file corresponding to the transaction underlying this dispute within 15 days.

4.

Plaintiffs shall have twenty days from production of defendant's loan file in which to file an amended complaint.

5.

Defendant's anticipated motion to dismiss the amended complaint, if filed, shall be noticed for hearing on June 26, 2009 at 9:00 a.m. This matter shall be set for an initial Case Management Conference on June 26, 2009 at 10:30 a.m.

DATED:

4/6/09

RONALD M. WHYTE United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH LEAVE TO AMEND, DENYING DEFENDANT'S REQUESTS FOR JUDICIAL NOTICE, DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION; AND SETTING FURTHER SCHEDULE--No. C-08-05795 RMW HRL TER 2

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Notice of this document has been electronically sent to: Counsel for Plaintiffs: John Stuart Perkins Counsel for Defendants: John M. Sorich S. Christopher Yoo jsorich@adornocom c [e-mail] j [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program.

Dated:

4/14/09

TER Chambers of Judge Whyte

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH LEAVE TO AMEND, DENYING DEFENDANT'S REQUESTS FOR JUDICIAL NOTICE, DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION; AND SETTING FURTHER SCHEDULE--No. C-08-05795 RMW HRL TER 3