Ramirez et al v. Quality Loan Servicing Corporation et al

Filing 14

ORDER Granting 9 Plaintiff's Motion to Enlarge Time to File Amended Complaint; and Denying 6 Motion to Dismiss as Moot: No later than December 2, 2009 Plaintiffs shall file their first amended complaint. Credit Suisse shall file a response to the first amended complaint within the time provided in Rule 15(a)(3). Signed by Judge M. James Lorenz on 10/28/2009. (mjj) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA RAFAEL R. RAMIREZ, et al., Plaintiffs, v. ) ) ) ) ) ) ) ) ) ) ) Civil No. 09cv1401-L(RBB) ORDER GRANTING PLAINTIFF'S MOTION TO ENLARGE TIME TO FILE AMENDED COMPLAINT AND DENYING MOTION TO DISMISS AS MOOT

QUALITY LOAN SERVICING CORP., 14 et al., 15 16 17 Defendants.

On September 21, 2009 U.S. Bank N.A., as trustee on behalf of Defendant named as

18 Credit Suisse First Boston Mortgage Securities Corporation ("Credit Suisse") filed a Motion to 19 Dismiss Plaintiff's Complaint for Failure to State a Claim upon Which Relief Can Be Granted 20 and/or for a More Definite Statement ("Credit Suisse's Motion") pursuant to Federal Rule of 21 Civil Procedure 12(b)(6) and (e). On October 26, 2009, a week before Credit Suisse's Motion 22 was set for a hearing, Plaintiffs filed a Motion for Leave to Enlarge Time to Plead First 23 Amended Complaint. Because Plaintiffs did not comply with the Civil Local Rules pertaining to 24 motions (see Notice of Document Discrepancies and Order Thereon signed Oct. 27, 2009) and in 25 the interests of justice, the court construes their motion as an ex parte application seeking an 26 extension of time to file the first amended complaint. 27 A party may amend its pleading once as a matter of course before being served with a

28 responsive pleading. Fed. R. Civ. Proc. 15(a)(1)(A). A motion such as a motion to dismiss or a
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1 motion for a more definite statement is not a pleading, and therefore not a responsive pleading, 2 as the term is used in the Federal Rules of Civil Procedure. Fed. R. Civ. Proc. 7(a); see Crum v. 3 Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). In the procedural posture of this 4 case, Plaintiffs may file their first amended complaint without leave of court. See id. 5 It appears that Plaintiffs requested enlargement of time out of an abundance of caution.

6 Plaintiffs will not be ready to file the first amended complaint until December 2, 2009. 7 According to Plaintiffs' counsel's affidavit, a serious ailment has prevented him from work and 8 necessitated him to hire additional counsel to take over his case load. For good cause shown 9 pursuant to Federal Rule of Civil Procedure 6(b), Plaintiffs' request for enlargement of time is 10 GRANTED. 11 An amended complaint supersedes a prior complaint as a pleading. Forsyth v. Humana,

12 Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). A district court may treat as moot a pending motion 13 to dismiss a superseded pleading. See William W. Schwarzer et al., Fed. Civ. Proc. Before Trial 14 ¶ 9:262 (2009). As Plaintiffs intend to file an amended complaint, Credit Suisse's Motion is 15 DENIED AS MOOT. 16 17 For the foregoing reasons, it is hereby further ORDERED: 1. No later than December 2, 2009 Plaintiffs shall file their first amended complaint. In

18 the first amended complaint, Plaintiffs shall address the issues raised in Credit Suisse's Motion. 19 2. Credit Suisse shall file a response to the first amended complaint within the time

20 provided in Rule 15(a)(3). 21 22 23 DATED: October 28, 2009 24 25 26 27 28
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IT IS SO ORDERED.

M. James Lorenz United States District Court Judge