Opinion
No. CV-09-37-PHX-DGC.
February 6, 2009
ORDER
Plaintiff filed a complaint against Defendants in state court on December 12, 2008. Dkt. #1-2 at 5-18. The complaint asserts violations of various federal statutes in connection with a mortgage loan and foreclosure proceedings. Id. The case has been removed to this Court. Dkt. #1.
Defendants Mortgage Electronic Registration Systems, Inc. and Aurora Loan Services, LLC have filed a motion to dismiss. Dkt. #8. Defendant Cal-Western Reconveyance Corporation has joined the motion. Dkt. #9. Plaintiff has filed a motion for leave to amend the complaint. Dkt. #12. Plaintiff agrees to voluntarily dismiss the RICO claim and concedes that some of the other claims could be amended to comport with federal law. Id. Plaintiff requests leave to provide a more definite statement of his claims. Id.
Under Rule 15 of the Federal Rules of Civil Procedure, a party may amend his pleading "once as a matter of course at any time before a responsive pleading is served[.]" Fed.R.Civ.P. 15(a). Because a motion to dismiss is not a "responsive pleading" within the meaning of the rule, see Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986), Plaintiff does not need leave of Court to file his proposed amended complaint. See Dkt. #13. The Clerk will be directed to file the lodged proposed amended complaint. In light of the filing of the amended complaint, the motion to dismiss the original complaint will be denied as moot.
IT IS ORDERED:
1. Plaintiff's motion for leave to amend complaint (Dkt. # 12) is denied as moot.
2. The Clerk is directed to filed the proposed lodged amended complaint (Dkt. #13).
3. The motion to dismiss the original complaint (Dkt. #8) is denied as moot.