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Larin v. Bank of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 4, 2010

EDUARDO LARIN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED,, PLAINTIFFS,
v.
BANK OF AMERICA, N.A., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR CLARIFICATION [Docket No. 24]

This case comes before the Court on Plaintiff's motion for clarification. Plaintiff seeks to clarify whether he may file a Second Amended Complaint in light of this Court's September 30, 2009 Order granting Defendants' motion to dismiss Plaintiff's First Amended Complaint without prejudice. Defendant has filed an opposition to the motion, and Plaintiff has filed a reply.

In granting Defendant's motion to dismiss Plaintiff's First Amended Complaint, it was unclear to the Court whether Plaintiff would be able to state a claim that was not preempted by the EFAA or the NBA. Therefore, the Court granted the motion to dismiss without prejudice, leaving Plaintiff the opportunity to conduct that analysis based on the underlying facts and the Court's discussion of the preemption issues. Plaintiff's former counsel did not file a Second Amended Complaint or request clarification of the Court's Order to determine whether he could do so. Plaintiff, now appearing in pro per, seeks that relief in the present motion.

As indicated above, the Court's September 30, 2009 Order contemplated the filing of a Second Amended Complaint, provided that it cured the pleading deficiencies set out in that Order. In other words, Plaintiff would have to state a claim based on the same underlying facts that is not preempted by the EFAA or the NBA. Plaintiff claims to have done so in his proposed Second Amended Class Action Complaint, but as Defendant points out, a plaintiff appearing in pro per is prohibited from filing a case on behalf of anyone other himself. See McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (stating plaintiff appearing in pro per "has no authority to appear as an attorney for others than himself.") Accordingly, although the Court grants Plaintiff's motion for clarification as discussed above, it declines to accept the Second Amended Complaint for filing in this case. Plaintiff remains free to file a Second Amended Complaint on his own behalf, or to file a Second Amended Class Action Complaint with the assistance of counsel.

IT IS SO ORDERED.

20100104

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