Boston v. Ocwen Loan Servicing, LLC.

Filing 14

ORDER denying as moot 12 Motion to Dismiss;and Striking 6 Second Amended Complaint. Signed by Senior Judge Graham Mullen on 9/12/2012. (Pro se litigant served by US Mail.)(eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12CV451

REGINA BOSTON,

)
)
Plaintiff,
)
)
vs.
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)
OCWEN LOAN SERVICING, LLC,
)
HSBC BANK USA, National Association, )
HUNOVAL LAW FIRM, PLLC,
)
)
Defendants.
)
____________________________________)

ORDER

This matter is before the Court upon Defendants’ Motion to Dismiss Plaintiff’s Second
Amended Complaint. Plaintiff filed her initial Complaint, captioned as the Affidavit of Regina
Boston [Doc. #1], on or about July 23, 2012. The initial Complaint was served on Defendant
Ocwen by the U.S. Marshal on August 3, 2012. Ocwen filed a Motion for Extension of Time to
respond to Plaintiff’s initial Complaint on August 13, 2012. The Court granted the Motion and
extended the time to answer or otherwise respond to September 5, 2012. Plaintiff filed her First
Amended Complaint, captioned as the Amended Complaint of Regina Boston AFFIDAVIT
[Doc. #6], on August 13, 2012. In the First Amended Complaint, Plaintiff adds two additional
Defendants: HSBC Bank USA (“HSBC”) and Hunoval Law Firm, PLLC (“HLF”). No
Summonses were issued in connection with this pleading as to these two Defendants. Plaintiff
subsequently filed her Second Amended Complaint, captioned as the “Amended Affidavit of
Regina Boston,” on August 21, 2012. It does appear that Summonses were issued as to HSBC
Bank and HLF in connection with this third pleading filed by Plaintiff. However, neither of the
Defendants has been properly served with the complaints filed in this action.

Federal Rule of Civil Procedure 15(a)(1) provides that a party may amend its
pleading once, “as a matter of course.” In this case, Plaintiff amended her initial pleading for the
first time on August 13, 2012. Federal Rule of Civil Procedure 15(a)(2) further provides that a
party may amend its pleadings in other circumstances only by satisfying a precondition, either
obtaining leave of court or obtaining the opposing party's written consent. Therefore, when Rule
15(a)(1) gives a party one opportunity to amend “as a matter of course,” the rule is providing a
single opportunity to amend without seeking either leave of court or the opposing party’s
consent. In this case, Plaintiff did not seek Defendants’ consent or leave of Court prior to
filing her Second Amended Complaint on August 21, 2012. Accordingly, this Second Amended
Complaint is hereby stricken and Defendants shall have twenty days from the date of this Order
to respond to Plaintiff’s First Amended Complaint (Doc. #6) filed on August 13, 2012.
IT IS HEREBY ORDERED that Plaintiff’s Second Amended Complaint is hereby
stricken; and Defendants’ Motion to Dismiss is hereby denied as moot;
IT IS FURTHER ORDERED that Defendants shall have twenty (20) days from the date
of this Order to respond to Plaintiff’s First Amended Complaint.
Signed: September 12, 2012