Hamilton et al v. US Bank, N.A. et al

Filing 48

ORDER (1) Denying without prejudice Motion to Dismiss filed by Defendants Randall D. Naiman and Naiman Law Group, PC; and (2) Granting Defendant U.S. Bank N.A.'s Motion to set aside Default re 28 , 39 . Defendants shall file a response to the a mended complaint, if any, within the time provided in Federal Rule of Civil Procedure 15(a)(3). The hearings set for these matters on September 9 and 16, 2011, respectively, are hereby Vacated. Signed by Judge Dana M. Sabraw on 8/23/11. (All non-registered users served via U.S. Mail Service)(lao)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

JAMES GARY HAMILTON, et al.,

12
13

CASE NO. 11CV977 DMS (RBB)
Plaintiffs,

ORDER (1) DENYING WITHOUT
PREJUDICE MOTION TO
DISMISS FILED BY
DEFENDANTS RANDALL D.
NAIMAN AND NAIMAN LAW
GROUP, PC; AND (2) GRANTING
DEFENDANT U.S. BANK N.A.’S
MOTION TO SET ASIDE
DEFAULT

vs.

14
15

US BANK, N.A., et al.,
Defendants.

16
17
18

In this mortgage foreclosure action, Defendants Randall D. Naiman and Naiman Law Group

19

(collectively “Naiman”) filed a motion to dismiss pursuant to Federal Rule of Civil Procedure

20

12(b)(6), strike pursuant to California Code of Civil Procedure Section 425.16(a), or alternatively for

21

a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). The motion is set on this

22

court’s calendar for September 9, 2011. Defendant U.S. Bank N.A. (“U.S. Bank”) filed a motion to

23

set aside entry of default, which is set on this court’s calendar for September 16, 2011. For the reasons

24

which follow, Naiman’s motion is DENIED WITHOUT PREJUDICE, and U.S. Bank’s motion is

25

GRANTED.

26

On August 8, 2011, the court issued an order granting with leave to amend Defendant

27

JPMorgan Chase Bank, N.A.’s motion to dismiss the complaint. (See docket no. 42 (“August 8

28

Order”).) On August 19, 2011 Plaintiffs timely filed their first amended complaint. An amended
-1-

11cv977

1

complaint supersedes a prior complaint as a pleading. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474

2

(9th Cir. 1997), aff'd on other grounds, Humana, Inc. v. Forsyth, 525 U.S. 299 (1999). Accordingly,

3

Naiman’s motion is DENIED as moot. This order is WITHOUT PREJUDICE to Naiman filing,

4

as appropriate, a motion to dismiss, strike or for a more definite pleading with respect to the first

5

amended complaint.

6

The August 8 Order also denied Plaintiffs’ motion for default judgment against U.S. Bank,

7

among other things. (See docket no. 42 at 4.) For the reasons stated therein, U.S. Bank’s motion to

8

set aside the entry of default is GRANTED.

9

For the foregoing reasons, it is hereby ORDERED as follows:

10

1. The motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), strike pursuant

11

to California Code of Civil Procedure Section 425.16(a), or alternatively for a more definite statement

12

pursuant to Federal Rule of Civil Procedure 12(e) filed by Defendants Randall D. Naiman and Naiman

13

Law Group is DENIED WITHOUT PREJUDICE.

14
15

2. Defendants shall file a response to the amended complaint, if any, within the time provided
in Federal Rule of Civil Procedure 15(a)(3).

16

3. The motion to set aside entry of default filed by Defendant U.S. Bank N.A. is GRANTED.

17

4. The hearings set for these matters on September 9 and 16, 2011, respectively, are hereby

18
19

VACATED.
IT IS SO ORDERED.

20
21

DATED: August 23, 2011

22
23

HON. DANA M. SABRAW
United States District Judge

24
25
26
27
28
-2-

11cv977