Sepehry-Fard v. MB Financial Services

Filing 107

Order Granting 95 Plaintiff's Motion for Leave to File Amended Complaint; Denying 97 , 98 Defendants' Motions as Moot. Signed by Hon. Beth Labson Freeman on 9/15/2014. (blflc2, COURT STAFF) (Filed on 9/15/2014) (Additional attachment(s) added on 9/15/2014: # 1 Certificate/Proof of Service) (tsh, COURT STAFF).

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 FAREED SEPEHRY-FARD, Case No. 13-cv-02784-BLF Plaintiff, 8 v. 9 10 MB FINANCIAL SERVICES, Defendant. United States District Court Northern District of California 11 ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT; DENYING DEFENDANT'S MOTIONS AS MOOT [Re: ECF 95, 97, 98] 12 13 Before the Court are three motions by the parties: (1) the “Motion With [sic] Leave of 14 Court to File Third Amended Complaint” filed by pro se plaintiff Fareed :Sepehry-Fard on July 1, 15 2014, (Pl.’s Mot., ECF 95); (2) the Motion to Dismiss Unfair Competition Law Claim from 16 Plaintiff’s Second Amended Complaint (“SAC”) filed by defendant Mercedes-Benz Financial 17 Services USA LLC, erroneously sued as MB Financial Services, on July 3, 2014, (Def.’s MTD, 18 ECF 97); and (3) the Motion to Strike Portions of Plaintiff’s Second Amended Complaint also 19 filed by Defendant on July 3, 2014, (Def.’s MTS, ECF 98). 20 Plaintiff seeks leave to file a Third Amended Complaint (“TAC”) comprising sixteen 21 claims beginning with a “6th Cause of Action.” See Pl.’s Mot. Exh. 1. On July 11, 2014, 22 Defendant filed a “Notice of Non-Opposition to Plaintiff’s Motion for Leave of Court to File 23 Third Amended Complaint.” Def.’s Non-Opp., ECF 101. Defendant indicated that it did not 24 object to this Court granting Plaintiff leave to file his proposed TAC and that it intended to 25 respond to the TAC with all motions appropriate pursuant to Federal Rule of Civil Procedure 12. 26 Id. at 3. Plaintiff on July 16, 2014 filed a reply to Defendants’ Non-Opposition. Pl.’s Reply, ECF 27 102. Plaintiff’s reply did not indicate that he wished to withdraw his motion for leave to amend. 28 Instead, Plaintiff stated cryptically that “Plaintiff does not believe that TAC overrides SAC, it was 1 and still is Plaintiff’s believe [unless court clarifies otherwise] that the complaints complemented 2 each other, that is why Plaintiff started TAC’s causes of actions with numeral 6 instead of 1.” Id. 3 ¶ 9. This Court has on two previous occasions informed Plaintiff that an amended pleading or a 4 5 proposed amended pleading must be able to stand by itself without reference to previous 6 pleadings. See Order Granting Motion to Dismiss First Amended Complaint 3-4, ECF 85; Order 7 Striking Motion for Leave to File Third Amended Complaint 2, ECF 94. It is not clear what 8 Plaintiff intended to accomplish by beginning his proposed TAC with the “6th Cause of Action.”1 9 However, in light of the fact that Defendant does not oppose Plaintiff’s request to amend and Plaintiff does not wish to withdraw his motion, the Court GRANTS Plaintiff’s motion with the 11 United States District Court Northern District of California 10 following proviso: the Court will not permit Plaintiff to revive any claim that has already been 12 dismissed with prejudice from this action. Plaintiff shall accordingly remove the Fair Debt 13 Collection Practices Act (“20th Cause of Action”) from the TAC. See Order re Motions 5-6, ECF 14 59 (dismissing FDCPA claim with prejudice). 15 Accordingly, IT IS HEREBY ORDERED THAT: 16 Plaintiff shall file his proposed Third Amended Complaint into the docket by no later 17 than October 2, 2014. Plaintiff shall make no changes to the TAC other than to remove the “20th 18 Cause of Action.” Plaintiff’s TAC shall stand as the operative complaint, and the only claims 19 before the Court shall be the ones set forth in the TAC. Because Plaintiff has been granted leave to amend his complaint, Defendants’ motions 20 21 regarding the SAC (ECF 97, 98) are DENIED as moot. IT IS SO ORDERED. 22 23 Dated: September 15, 2014 ______________________________________ BETH LABSON FREEMAN United States District Judge 24 25 26 27 1 28 The Court notes that the currently operative SAC contains only two claims. See Second Amended Complaint, ECF 88. 2

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