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Imada v. Onewest Bank

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 11, 2010

WESLIE H. IMADA, PLAINTIFF,
v.
ONEWEST BANK, FSB, ET AL., DEFENDANTS.

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

MEMORANDUM AND ORDER

This action arises out of a mortgage loan transaction in which Plaintiff Weslie H. Imada ("Plaintiff") refinanced his home in February 2007. Presently before the Court is a Motion by Defendants OneWest Bank FSB and Mortgage Electronic Registration Systems, Inc. ("Defendants") to Dismiss the claims alleged against them in Plaintiff's Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 Plaintiff has failed to file an Opposition.

On April 26, 2010, the parties filed a Stipulation to take Defendants' Motion to Dismiss off calendar. Said stipulation fails to address whether the Motion to Dismiss is withdrawn or still pending. Accordingly, pursuant to Federal Rule of Civil Procedure 83(b), the stipulation is stricken as vague.

On April 23, 2010, Plaintiff late-filed a First Amended Complaint. Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), Plaintiff's authority to amend his pleading as a matter of course expired twenty-one (21) days after Defendants' Motion to Dismiss was filed. Plaintiff's First Amended Complaint was not timely filed and is hereby stricken.

In light of no opposition filed by Plaintiff, Defendants' Motion to Dismiss (Docket No. 12) is GRANTED with 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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