Engel v. First American Title Insurance Company et al

Filing 69

ORDER of Clarification and Directive by Judge Benjamin H Settle. Motion terminated: 61 MOTION for clarification/instruction regarding the filing of the second amended complaint re 44 Order on Motion to Amend filed by Lonnie Engel. (TG)

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ORDER ­ 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA LONNIE ENGEL, Plaintiff, v. FIRST AMERICAN TITLE INSURANCE COMPANY, a Washington corporation, et al., Defendants. This matter comes before the Court on Plaintiff's ("Engel") motion for clarification/instruction regarding the filing of a second amended complaint (Dkt. 61) and Defendant Nationstar Mortgage LLC's ("Nationstar") motion to dismiss Engel's complaint against Nationstar for failure to state a claim under Fed. R. Civ. P. 12(b)(6) (Dkt. 54). The court has considered the pleadings filed in support of the motion and the remainder of the file, and hereby orders Engel to take action as stated herein. I. PROCEDURAL AND FACTUAL HISTORY On March 16, 2009, Engel filed his original complaint against Defendants, including Nationstar (Dkt. 1). On April 20, 2009, Engel filed his first amended complaint ("FAC") (Dkt. 12), and on March 31, 2010, moved to file a second amended complaint ("SAC") (Dkt. 43). Filed with that motion was a proposed SAC. Id. The Court granted Engel leave to file a SAC and directed him to do so electronically. Dkt. 44. ORDER OF CLARIFICATION AND DIRECTIVE TO CHOOSE A COURT OF ACTION CASE NO. C09-5140BHS

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On July 15, 2010, Nationstar moved the Court to dismiss Engel's SAC, citing Fed. R. Civ. P. 12(b)(6), for failure to state a claim. Dkt. 54. The Court renoted this motion for consideration on August 20, 2010, pursuant to stipulation of the parties. Dkt. 64. On August 9, 2010, Engel filed a motion for clarification/instruction regarding the filing of the SAC. Therein, Engel contends that there was no SAC on file. Dkt. 61.1 On August 18, 2010, Nationstar responded in opposition to Engel's motion for clarification. Dkt. 65. Engel did not reply. II. DISCUSSION This order is to clarify for Engel and other parties in the matter as to how Engel should proceed. Engel's motion for clarification comes shortly before the trial date in this case. See Dkt. 42. Within Engel's motion for clarification (Dkt. 61), he contends that he has never properly filed his SAC. See Dkt. 44 (granting leave to file the SAC and directing counsel to e-file the document). In fact, the SAC has not been filed other than as an attachment to the motion to file it. See Dkt. 43, Attachment 1. Also within the motion for clarification, Engel asserts, among other things, that the SAC as drafted is incomplete, requires further evidence, and that at least one additional party should be added (Fannie Mae). See Dkt. 61 at 3-5. Such issues are the proper subject of motions to amend, compel, and join parties. Engel has made no such motions with respect to the issues presented herein. Further, Engel acknowledges the need to respond to Nationstar's motion to dismiss his SAC (Dkt. 54). No response has been filed at this time. The Court recognizes that Engel has been waiting for resolution of the instant motion for clarification. Any claims beyond the scope of the previously authorized SAC would be the subject of a motion for leave to file a third amended complaint, which Engel has not

The Court notes that the time between the second amended complaint and Engel's motion for clarification, both parties had a change of counsel. Dkts. 49, 59, 60.
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ORDER ­ 2

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moved for and would be unlikely to prevail on, considering the Court's schedule in this matter. Without Engel filing such a motion, he shall either file and proceed under the SAC previously authorized by the Court (Dkt. 44) or proceed under the FAC (Dkt. 12). If Engel wishes to proceed under the SAC (Dkt. 43, Attachment 1), he shall officially file it on or before Friday, September 10, 2010. Otherwise, the Court will deem the FAC as the operative complaint in this case. Although the date to respond to the motion to dismiss (Dkt. 54) has passed, the Court will permit Engel to file a response no later than this Friday, September 10, 2010. Nationstar may file a reply no later than Wednesday, September 15, 2010. III. ORDER It is hereby ORDERED that Engel is directed to take a course of action as outlined herein. DATED this 8th day of September, 2010.

A

BENJAMIN H. SETTLE United States District Judge

ORDER ­ 3