Bret and Kimberly Lawrence v. Caplan et al

Filing 18

ORDER re 11 , 13 , and 15 . In light of the filing of Plaintiffs First Amended Complaint 13 , the case management conference, currently scheduled for October 26, 2010, is CONTINUED to December 14, 2010, and Defendants motion to appear by telephone at it 15 is DENIED AS MOOT. In addition, Defendants motion to dismiss 11 is TERMINATED and the October 26 motion hearing is VACATED. Defendants shall file either an answer to Plaintiffs First Amended Complaint or any motion to dismiss within 21 days from the date of this order. Signed by Magistrate Judge Howard R. Lloyd on 10/20/2010. (hrllc1, COURT STAFF) (Filed on 10/20/2010)

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Bret and Kimberly Lawrence v. Caplan et al Doc. 18 1 2 3 4 5 6 7 8 9 10 ** E-filed October 20, 2010 ** NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION BRET AND KIMBERLY LAWRENCE, Plaintiffs, v. MITCHEL H. CAPLAN, an individual; E*TRADE WHOLESALE LENDING CORPORATION, a California corporation; and DOES 1-10, Defendants. No. C10-02839 HRL ORDER (1) CONTINUING THE CASE MANAGEMENT CONFERENCE AND DENYING AS MOOT DEFENDANTS' REQUEST TO APPEAR BY TELEPHONE, (2) TERMINATING DEFENDANTS' MOTION TO DISMISS AND VACATING THE OCTOBER 26 HEARING DATE, AND (3) SETTING THE DEADLINE FOR DEFENDANTS' RESPONSE TO PLAINTIFFS' FIRST AMENDED COMPLAINT [Re: Docket No. 11, 13 & 15] United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For the Northern District of California ____________________________________/ This suit arises out of plaintiffs Bret and Kimberly Lawrence's ("Plaintiffs") interest-only, adjustable-rate mortgage that they entered into with defendant E*Trade Wholesale Lending Corporation ("E*Trade") in December 2006. Plaintiffs claim that they entered into the mortgage as a result of E*Trade's alleged abusive lending practices. Plaintiffs' thus filed suit against E*Trade and its former Chief Executive Officer, Mitchel H. Caplan ("Caplan") (collectively, "Defendants"), on June 28, 2010 for violation of the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. 1961-1968 ("RICO"), the Truth in Lending Act, 15 U.S.C. 601 et seq. ("TILA"), California's False Advertising Law, CAL. BUS. & PROF. CODE 17500 ("FAL"), and California's Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 Unfair Competition Law, CAL. BUS. & PROF. CODE 17200 ("UCL"), and for breach of the implied covenant of good faith and fair dealing. (Docket No. 1.) On September 17, Defendants filed a motion to dismiss Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 11.) Eighteen days later on October 5, rather than opposing Defendants' motion, Plaintiffs filed a First Amended Complaint as a matter of course. (Docket No. 13.) No further briefing on Defendants' motion has been filed, nor has any notice of Plaintiffs' non-opposition. The motion is currently scheduled to be heard on October 26. A case management conference is also currently scheduled for the same day, and Defendants' filed a request to appear at it by telephone. (Docket No. 15.) Federal Rule of Civil Procedure 15(a) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." FED. R. CIV. P. 15(a)(1). Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). Plaintiffs filed their First Amended Complaint eighteen days later, within the 21-day window provided by Rule 15(a)(1)(B). Thus, Plaintiffs' First Amended Complaint was timely filed and they had the right to file it as a matter of course. In light of the filing of Plaintiffs' First Amended Complaint, the case management conference, currently scheduled for October 26, 2010, is CONTINUED to December 14, 2010, and Defendants' motion to appear by telephone at it is DENIED AS MOOT. In addition, Defendants' motion to dismiss is TERMINATED and the October 26 motion hearing is VACATED. Defendants shall file either an answer to Plaintiffs' First Amended Complaint or any motion to dismiss within 21 days from the date of this order. IT IS SO ORDERED. Dated: October 20, 2010 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For the Northern District of California 2 1 2 3 4 5 6 7 8 9 10 C10-02839 HRL Notice will be electronically mailed to: Jessica Elaine Rauff Kurt A. Kappes Marc Bradley Koenigsberg jrauff@gmail.com kappesk@gtlaw.com, burrisr@gtlaw.com, saclitdock@gtlaw.com koenigsbergm@gtlaw.com, brownsh@gtlaw.com, SACLitDock@gtlaw.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program. United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For the Northern District of California 3

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