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Sanchez v. GMAC Mortgage

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 11, 2010

JOSEPH SANCHEZ, PLAINTIFF,
v.
GMAC MORTGAGE, LLC, DEFENDANT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

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).*fn1

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.


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