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Sainz v. Wells Fargo Bank

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


August 6, 2010

CLAUDIA SAINZ, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., AMERICAN SERVICING COMPANY, HSBC FINANCIAL AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORP., AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.

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

ORDER

Plaintiff filed a first amended complaint on August 2, 2010 without seeking leave to amend. Plaintiff filed her first amended complaint on the same day Defendants' motion to dismiss Plaintiff's original complaint was submitted; Plaintiff failed to file an opposition or statement of non-opposition to that motion as required by Local Rule 230(c). It appears that if Plaintiff was concerned about the time involved with the undersigned judge's consideration of Defendants' motion to dismiss, Plaintiff would have timely complied with her filing obligation under Local Rule 230(c).

Under Federal Rule of Civil Procedure 15(a): "A party may amend its pleading once as a matter of course within . . . 21 days after service of a motion under Rule 12(b)." Fed. R. Civ. P. 15(a)(1)(B). Plaintiff's first amended complaint is untimely since Defendants filed their motion to dismiss on May 25, 2010, over 21 days before Plaintiff filed her amended complaint. Leave to amend is normally sought via a noticed motion. Fed. R. Civ. P. 7(b)(1) ("A request for a court order must be made by motion."). Nevertheless, for the sake of efficiency, the Court will consider Plaintiff's untimely amended complaint as a request for leave to amend her complaint. Since this case is in its early stages, Plaintiff's first amended complaint is deemed filed as of the date this Order is filed and the first amended complaint is the operative pleading on the date this order is filed. Therefore, Defendants' motion to dismiss Plaintiff's original complaint (Docket No. 6) is denied as moot.

20100806

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