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Clark v. Countrywide Recontrust Co.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 25, 2010

BERNARD CLARK, PLAINTIFF,
v.
COUNTRYWIDE RECONTRUST COMPANY; FIRST MAGNUS HOME LOANS, INC.; FINANCIAL CORPORATION; BANK OF MERS AMERICA NA; CHASE HOME FINANCE LLC, INCLUSIVE, INC.; AND DOES I-XX, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER RE: UNSIGNED PLEADINGS

I. BACKGROUND

On November 11, 2009, Defendants Countrywide Home Loans, Inc., Recontrust Company, and Bank of America, N.A., erroneously sued as Bank of America, ("Defendants") removed this case to federal court. Attached to their notice of removal is Plaintiff's pro se state court complaint filed in Tuolumne County Superior Court. (Doc. 1, Ex. A.) Plaintiff's state court complaint is unsigned.

On December 10, 2009, Defendants filed a motion to dismiss the claims asserted in the state court complaint. On February 12, 2010, Plaintiff filed an opposition to the motion. On February 16, 2010, Plaintiff filed a pro se First Amended Complaint ("FAC") in federal court. The FAC is also unsigned.

II. DISCUSSION AND ANALYSIS

Pursuant to the California Code of Civil Procedure:

Every pleading, petition, written notice of motion, or attorney of record in the attorney's individual name, or, be signed by at least one other similar paper shall signed by the if the party is not represented by an attorney, shall be party. Each paper shall state the signer's paper address and telephone number, if any. . . . An unsigned shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

Cal. Civ. Proc. Code § 128.7(a) (emphasis added). This section was modeled after Rule 11 of the Federal Rules of Civil Procedure. Bd. of Trs. of Leland Stanford Jr. Univ. v. Superior Court, 149 Cal. App. 4th 1154, 1169 (2007). Under Rule 11:

Every pleading, written motion, and other paper must be attorney's name--or by a party personally signed by at least one attorney of record in the unrepresented. The paper must state the signer's if the party is address, e-mail court must strike an unsigned paper unless the omission address, and telephone number. . . . The is promptly corrected after being called to the attorney's or party's attention.

Fed. R. Civ. P. 11(a) (emphasis added).

Neither the removed state court complaint nor the FAC are signed by Plaintiff. Both contain blank signature blocks. Consistent with § 128.7(a) and Rule 11, through this order, Plaintiff is notified that his state court complaint and his FAC will be stricken unless Plaintiff files a signed amended complaint by March 18, 2010, which shall become the operative pleading in this case.

If Plaintiff files a signed amended complaint by the deadline, Defendants can renew their motion to dismiss (Doc. 4) and incorporate by reference any briefing already on file. The hearing on the motion to dismiss, currently scheduled for March 1, 2010, is VACATED. The hearing may be re-noticed by Defendants if and when Plaintiff files a signed amended complaint as ordered.

IT IS SO ORDERED.

20100225

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