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Lee v. Capital One Bank

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


January 30, 2009

STEPHEN LEE, PLAINTIFF,
v.
CAPITAL ONE BANK (USA), N.A., ET AL., DEFENDANTS

The opinion of the court was delivered by: Maxine M. Chesney United States District Judge

ORDER DIRECTING PLAINTIFF TO SUPPLEMENT MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; CONTINUING HEARING ON PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; CONTINUING CASE MANAGEMENT CONFERENCE

On January 7, 2009, at which time the above-titled matter was pending before 19 Magistrate Judge Edward M. Chen, plaintiff filed a Motion for Leave to File Amended 20 Complaint, noticed for hearing February 4, 2009. In the proposed First Amended 21 Complaint ("proposed FAC"), attached as an exhibit to the motion, plaintiff sought to 22 (1) delete the existing statutory claims alleged against defendant Capital One Bank (USA), 23 N.A. ("Capital One") and add a claim for "tortious breach of contract" against Capital One, 24 (2) add additional facts in support of his existing statutory claims against defendant NCO 25 Financial Systems, Inc., and (3) add NCO Portfolio Management as a defendant. 26 Thereafter, on January 9, 2009, the instant action was reassigned to the undersigned, and 27 the February 4, 2009 hearing was vacated in light of the reassignment. (See 28 Reassignment Order.)

On January 21, 2009, plaintiff filed a "Notice of Dismissal Without Prejudice," by which plaintiff voluntarily dismissed the instant action without prejudice as to Capital One only. Thereafter, on January 24, 2009, plaintiff filed a "Re-Notice of Motion for Leave to File Amended Complaint," in which plaintiff, in addition to noticing said motion for a March 6, 2009 hearing, states the motion is based on his previously-filed "supporting documents," including the proposed FAC discussed above. In light of plaintiff's having voluntarily dismissed Capital One from the instant action, the proposed FAC would not be properly filed, because it includes a new claim against Capital One, unless plaintiff intends to reinstitute the instant action as against Capital One. Accordingly, the Court hereby directs plaintiff to file, no later than February 13, 2009, either (a) a supplement to his Motion for Leave to File a First Amended Complaint, specifically, a statement indicating he is seeking to reinstitute the instant action against Capital One, or, alternatively, (b) a revised proposed FAC in which plaintiff no longer alleges a new claim against Capital One. The hearing on plaintiff's motion is hereby CONTINUED from March 6, 2009 to March 20, 2009, and the Case Management Conference is hereby CONTINUED from March 27, 2009 to May 8, 2009.

IT IS SO ORDERED.

20090130

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