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Sanchez v. GMAC Mortgage, LLC

United States District Court, E.D. California
Feb 11, 2010
No. 2:09-cv-03341-MCE-JFM (E.D. Cal. Feb. 11, 2010)

Opinion

No. 2:09-cv-03341-MCE-JFM.

February 11, 2010


MEMORANDUM AND ORDER


This dispute arises out of a mortgage loan transaction that eventually led to the foreclosure of Plaintiff's home. Presently before the Court is a Motion by Defendant GMAC Mortgage, LLC ("Defendant") to Dismiss the claims alleged against it in the Complaint of Plaintiff Joseph Sanchez ("Plaintiff") for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant also moves to strike portions of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(f).

Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).

Plaintiff does not substantively oppose Defendant's Motion. Rather, Plaintiff has submitted a statement indicating his intention to file a First Amended Complaint which would thereby render Defendant's Motion moot.

However, pursuant to Rule 15(a) as made effective on December 1, 2009, a party may only amend its pleading once as a matter of course within 21 days after service of a motion under 12(b), (e) or (f). Fed.R.Civ.P. 15(a)(1)(B). Defendant's Rule 12(b) and 12(f) Motions were served on December 7, 2009. Consequently, if Plaintiff wished to amend his Complaint as a matter of course, he needed to do so on or before December 28, 2009. That date having passed, any amendment to Plaintiff's Complaint now requires leave by this Court. Plaintiff may no longer simply "moot" Defendant's Motions.

Therefore, in light of Plaintiff's failure to provide any material opposition, Defendant's Motion to Dismiss and Motion to Strike (Docket Nos. 8 and 10) are GRANTED. The Court will afford Plaintiff leave to amend.

Plaintiff may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically. If no amended complaint is filed within said twenty (20)-day period, without further notice, Plaintiff's claims will be dismissed without leave to amend.

IT IS SO ORDERED.


Summaries of

Sanchez v. GMAC Mortgage, LLC

United States District Court, E.D. California
Feb 11, 2010
No. 2:09-cv-03341-MCE-JFM (E.D. Cal. Feb. 11, 2010)
Case details for

Sanchez v. GMAC Mortgage, LLC

Case Details

Full title:JOSEPH SANCHEZ, Plaintiff, v. GMAC MORTGAGE, LLC, Defendant

Court:United States District Court, E.D. California

Date published: Feb 11, 2010

Citations

No. 2:09-cv-03341-MCE-JFM (E.D. Cal. Feb. 11, 2010)