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Patel v. Home Savings of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 19, 2010

SUNIL K. PATEL AND DAKSHA S. PATEL, PLAINTIFFS,
v.
HOME SAVINGS OF AMERICA, ET AL., DEFENDANTS.

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

ORDER: (1) GRANTING DEFENDANT RESIDENTIAL FUNDING LLC'S MOTION TO DISMISS; [Doc. No. 4] (2) GRANTING DEFENDANTS AURORA LOAN SERVICES AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.'S MOTION TO DISMISS; [Doc. No. 5] (3) DENYING PLAINTIFFS' REQUEST TO AMEND [Doc. No. 8]

On July 21, 2010, Plaintiffs Sunil Patel and Daksha Patel ("Plaintiffs") filed a Complaint in the Superior Court of California, County of San Diego. On September 3, 2010, Defendant Residential Funding LLC ("Residential Funding") removed the Complaint to this Court. [Doc. No. 1.] On September 10, 2010, Residential Funding filed a Motion to Dismiss Plaintiffs' Complaint. [Doc. No. 4.] On September 21, 2010, Defendants Aurora Loan Services and Mortgage Electronic Registration Systems, Inc. filed a Motion to Dismiss Plaintiffs' Complaint. [Doc. No. 5.] On October 15, 2010, Plaintiffs filed a Statement of Non-Opposition and Request to Amend. [Doc. No. 8.]

Federal Rules of Civil Procedure, Rule 15(a) provides that a party's right to amend as a matter of course terminates "21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a)(1)(B). The time for Plaintiffs to file an amended pleading as a matter of right has passed. Thus, Plaintiffs may only amend its pleading with the Court's leave. Fed.R.Civ.P. 15(a)(2).

Under the Civil Local Rules, a party must first obtain a hearing date for any matters on which a ruling is required. ACivLR 7.1.b. Furthermore, the Local Rules state that a written notice of the matter requiring the Court's ruling is necessary and requires a minimum filing date of twenty-eight days prior to the date for which the matter is noticed, such that opposing counsel is provided adequate time to respond. See ACivLR 7.1.e. Here, Plaintiffs included in their statement of non-opposition a request to amend their Complaint. [Doc. 8.] Plaintiffs did not request a hearing date from the clerk of the judge to whom the case is assigned, nor did they otherwise seek leave of Court in compliance with the aforementioned Local Rules.

Accordingly, IT IS HEREBY ORDERED THAT:

(1) Defendant Residential Funding LLC's Motion to Dismiss is GRANTED without prejudice;

(2) Defendants Aurora Loan Services and Mortgage Electronic Registration Systems, Inc.'s Motion to Dismiss is GRANTED without prejudice; and

(3) Plaintiffs' Request for Leave to Amend is DENIED. If Plaintiffs choose to seek leave of Court to file an amended complaint, Plaintiffs shall do so in accordance with Local Civil Rule 7.1.

IT IS SO ORDERED.

20101019

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