Pinales et al v. Quality Loan Service Corporation et al

Filing 11

ORDER Denying as Moot 9 Motion for Leave to File a First Amended Complaint: If plaintiffs intend to file a first amended complaint, they must do so no later than January 15, 2010. If plaintiffs intend to oppose defendants motion without filing an a mended complaint, they must file their opposition memorandum no later than January 14, 2010. Because plaintiffs filed an opposition to the motion to dismiss as an attachment to their motion for leave to amend the complaint, they must file their opposition as a separate document if they do not file an amended complaint. Signed by Judge M. James Lorenz on 1/12/2010. (mjj) (jrl).

1 2 3 4 5 6 7 8 9 10 11 EFREN PINALES, HELDA PINALES, 12 13 v. 14 QUALITY LOAN SERVICE CORPORATION, et al., 15 Defendants. 16 17 Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) Civil No. 09cv1884 L(AJB) ORDER DENYING MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT [doc. #9] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Defendant Aurora Loan Services, LLC filed a motion to dismiss the above-captioned case

18 and to expunge the lis pendens that are set for hearing on January 25, 2010. On January 11, 19 2010, plaintiffs filed a document that purports to be a motion for leave to file a first amended 20 complaint. The motion also contains their response in opposition to the motion to dismiss 21 attached as an exhibit. 22 In order to file a motion, plaintiffs must comply with the Civil Local Rules. Local Rule

23 7.1(b) requires that a hearing date for a motion be obtained from the clerk of the judge to whom 24 the case is assigned. Plaintiffs have not obtained a hearing date from chambers and instead 25 assume that their motion can be heard on the same date as defendant's motions to dismiss and to 26 expunge the lis pendens. Plaintiffs' motion cannot be heard on the same date based upon Local 27 Rule 7.1(e)(1) that provides a motion "require(s) a minimum filing date of twenty-eight (28) 28 days prior to the date for which the matter is noticed." For these reasons, plaintiffs motion for
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1 leave to file an amended complaint could be stricken from the record for noncompliance with the 2 Civil Local Rules. 3 More important than the procedural errors in the filing, plaintiffs' motion seeks leave of

4 court that is not required. 5 A party may amend its pleading once as a matter of course before being served with a

6 responsive pleading. FED. R. CIV. PROC. 15(a)(1)(A). A motion to dismiss is not a pleading, and 7 therefore is not a responsive pleading, as the term is used in the Federal Rules of Civil 8 Procedure. FED. R. CIV. PROC. 7(a); see Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 9 (9th Cir. 2000). Accordingly, plaintiffs were able to file their first amended complaint without 10 seeking leave of court. See id. 11 Plaintiffs' counsel is admonished that he is expected to know and follow the Local Civil

12 Rules, the E-Filing Manual, and the Federal Rules of Civil Procedure. Any further failure to 13 comply with the applicable rules of court may result in monetary sanctions being imposed. 14 Based on the foregoing, plaintiffs' motion for leave to file a first amended complaint is

15 DENIED as moot. If plaintiffs' intend to file a first amended complaint, they must do so no 16 later than January 15, 2010. If plaintiffs intend to oppose defendant's motion without filing an 17 amended complaint, they must file their opposition memorandum no later than January 14, 18 2010.1 19 IT IS SO ORDERED.

20 DATED: January 12, 2010 21 22 23 COPY TO: 24 HON. ANTHONY J. BATTAGLIA UNITED STATES MAGISTRATE JUDGE 25 ALL PARTIES/COUNSEL 26 27 Because plaintiffs filed an opposition to the motion to dismiss as an attachment to their motion for leave to amend the complaint, they must file their opposition as a separate 28 document if they do not file an amended complaint.
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M. James Lorenz United States District Court Judge

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