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Gamez v. IndyMac Federal Bank

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


October 1, 2009

ANTONIO M. GAMEZ, JR., PLAINTIFF,
v.
INDYMAC FEDERAL BANK, INDYMAC FEDERAL BANK, FSB, REGIONAL TRUSTEE SERVICE CORP., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., WSP FINANCIAL GROUP, INC., JOHN MANUEL SANTOS, SANG SO, AND DOES 1-20, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING MOTION TO DISMISS AS MOOT

On September 3, 2009, Defendant Mortgage Electronic Systems, Inc. filed a motion to dismiss Plaintiffs' First Amended Complaint. (Docket No. 13.) But Plaintiff filed the First Amended Complaint without the opposing party's consent or the court's leave, and after a responsive pleading had already been filed. (See Docket No. 8, Defendant John Manuel Santos's Answer to the Original Complaint.) Under Federal Rule of Civil Procedure 15(a), "[a] party may amend its pleading once as a matter of course: before being served with a responsive pleading . . . ." Fed. R. Civ. P. 15(a)(1)(A). When a responsive pleading has been filed, "a party may amend its pleadings only with the opposing party's written consent or the court's leave."

Fed. R. Civ. P. 15(a)(2). Defendant Santos's filing of an answer therefore terminated Plaintiff's ability to amend his complaint as a matter of course. Since Plaintiff had no leave to file the First Amended Complaint, that Complaint is inoperative. Therefore, the First Amended Complaint is STRICKEN and the Motion to Dismiss is DENIED as moot.

20091001

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