Berube v. HSBC Bank USA N.A.

Filing 21

ORDER BY JUDGE JEREMY FOGEL VACATING HEARING SET FOR MARCH 23, 2009; GRANTING 5 MOTION TO DISMISS WITH LEAVE TO AMEND; AND DENYING 8 , 10 MOTIONS TO STRIKE AND FOR MORE DEFINITE STATEMENT AS MOOT. (jflc2, COURT STAFF) (Filed on 3/18/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court are Defendant's motion to dismiss, motion to strike, and motion for more definite statement. The Court has considered the moving and responding papers. The Court concludes that the motions are appropriate for disposition without oral argument. See Civ. L.R. 7-1(b). For the reasons discussed below, the motion to dismiss will be granted with leave to amend and the motions to strike and for more definite statement will be denied as moot. DISCUSSION Plaintiff, proceeding pro se, commenced this action by filing a complaint in the Monterey County Superior Court on October 27, 2008. Plaintiff alleges four claims arising out of a nonjudicial foreclosure sale that allegedly occurred on April 15, 2008: (1) untitled claim
C a s e No. C 09-127 JF (PVT) O R D E R VACATING HEARING SET FOR MARCH 23, 2009 ETC. ( JF L C 2 )

**E-Filed 3/18/09**

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

MICHAEL R. BERUBE, Plaintiff, v. HSBC BANK USA, Defendant.

Case Number C 09-127 JF (PVT) ORDER VACATING HEARING SET FOR MARCH 23, 2009; GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND; AND DENYING MOTIONS TO STRIKE AND FOR MORE DEFINITE STATEMENT AS MOOT

[re: document nos. 5, 8, 10 ]

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asserting unlawful nonjudicial foreclosure sale; (2) violation of the federal Fair Debt Collection Practices Act, the California Rosenthal Fair Debt Collection Practices Act, and the Real Estate Settlement Procedures Act; (3) predatory lending practices; and (4) violation of RICO. Defendant filed a notice of removal on January 12, 2009, and filed the instant motions a few days later on January 16, 2009. Plaintiff filed an omnibus opposition brief on February 27, 2009, and Defendant filed reply briefs on March 6, 2009. On March 16, 2009, the Court issued a Clerk's Notice continuing the hearing date from March 20, 2009 to March 23, 2009. Also on March 16, 2009, counsel for Defendant contacted the Court and stated that he was not available to attend the hearing on March 23, and suggested several alternative hearing dates to which his motions could be continued. Court staff attempted to contact Plaintiff at the telephone number provided on his opposition brief, but that number apparently is for a facsimile machine, so Court staff was unable to speak with Plaintiff or leave a message about his availability for a new hearing date. After reviewing the complaint, the Court concludes that Defendant's motion to dismiss is well taken. Plaintiff appears to concede that his claims could be pleaded more clearly. Accordingly, rather than delaying adjudication of the motion while it makes further attempts to contact Plaintiff, the Court decided to submit the matter without oral argument and grant the motion to dismiss with leave to amend. In light of this disposition, the motions to strike and for more definite statement will be denied as moot, without prejudice to their renewal if appropriate if and when Plaintiff files an amended complaint. ORDER (1) (2) (3) The motion hearing set for March 23, 2009 is VACATED; Defendant's motion to dismiss is GRANTED WITH LEAVE TO AMEND; and Defendant's motions to strike and for more definite statement are DENIED AS MOOT.

DATED: 3/18/09 __________________________________ JEREMY FOGEL United States District Judge

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C a se No. C 09-127 JF (PVT) O R D E R VACATING HEARING SET FOR MARCH 23, 2009 ETC. ( JF L C 2 )

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Copies of Order served on:

Dean A. Christopherson Michael R. Berube PO Box 356 Carmel Valley, CA 93924

[e-mail]

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C a se No. C 09-127 JF (PVT) O R D E R VACATING HEARING SET FOR MARCH 23, 2009 ETC. ( JF L C 2 )