Jesus v. Wachovia

Full title: MANUEL DE JESUS, an individual Plaintiff, v. WACHOVIA now doing business…

Court: United States District Court, N.D. California, San Jose Division

Date published: Nov 22, 2010

Case Number 5:10-cv-04212-JF (HRL) (N.D. Cal. Nov. 22, 2010)

Opinion

Case Number 5:10-cv-04212-JF (HRL).

November 22, 2010

ORDER¹ GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND [Re: Docket No. 9]

1 This disposition is not designated for publication in the official reports.

JEREMY FOGEL, District Judge

Defendants Wachovia, et al. ("Wachovia") move to dismiss all six claims for relief in Plaintiff's complaint. Plaintiff alleges violations of the Real Estate and Settlement Procedures Act, 12 U.S.C. § 2605 ("RESPA"); the Truth in Lending Act, 15 U.S.C. § 1601; Cal. Bus. Prof. Code § 17200; and related claims.

As of the date of this order, Plaintiff has not filed opposition papers. However, Plaintiff filed an amended complaint on November 3, 2010. Federal Rule of Civil Procedure 15(a)(1) provides that "a party may amend its pleading once as a matter of course within (a) 21 days after serving it, or (b) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Plaintiff's amended complaint thus is untimely. Wachovia filed its motion to dismiss and motion to strike portions of Plaintiff's original complaint on September 24, 2010. If Plaintiff sought to amend his complaint as a matter of course, the amended pleading should have been filed on or before October 15, 2010.

Accordingly, Plaintiff's first amended complaint will be stricken. Because the instant motion appears well-taken and is unopposed, the motion will be granted with leave to amend. Any amended pleading shall address the arguments made in Wachovia's motion and shall be filed within twenty (20) days after the date of this order.

ORDER

Good cause therefor appearing, IT IS HEREBY ORDERED THAT

(1) Defendants' motion to dismiss Plaintiff's original complaint is GRANTED, WITH LEAVE TO AMEND;

(2) any amended pleading shall be filed within twenty (20) days after the date of this order;

(3) Defendants' motion to strike portions of Plaintiff's original complaint is terminated as moot;

(4) Defendants' motion to dismiss Plaintiff's first amended complaint is terminated as moot; and

(5) Defendants' motion to strike Plaintiff's first amended complaint is GRANTED as set forth above.

DATED: November 22, 2010