IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 10, 2010
DENNLY R. BECKER; THE BECKER TRUST DATED MARCH 25, 1991, PLAINTIFFS,
WELLS FARGO BANK, N.A., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On October 27, 2010 defendants Wells Fargo Bank, N.A., and Wachovia Mortgage Corporation filed a motion to dismiss plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), with a hearing date set for December 9, 2010. (Dkt. No. 11.) On November 4, 2010, plaintiff Dennly R. Becker, who is proceeding without counsel, filed a motion for leave to file a First Supplemental Complaint pursuant to Federal Rule of Civil Procedure 15(d).*fn1 (Dkt. No. 13.) Plaintiff alleges that since the filing of the original complaint on September 15, 2010, that there have been additional acts by defendants which give rise to additional claims. (Dkt. No. 13 at 3.) As a general rule, leave to file a supplemental pleading should be freely given, in the absence of any apparent dilatory motive or bad faith on the part of the movant. San Luis & Delta-Mendota Water Auth. v. U.S. Dept. of Interior, 236 F.R.D. 491 (E.D. Cal. 2006).
However, it appears that plaintiff is also seeking to amend his complaint to add additional causes of action. Federal Rule of Civil Procedure 15(a)(1)(B) states that a party may amend a pleading once as a matter of course within 21 days after service of a Rule 12(b) motion. Plaintiff's supplemental pleading was filed within that timeframe and the court finds that leave to amend should be given in this case.
The filing of an amended pleading, however, impacts defendants' motion to dismiss.*fn2 In light of the foregoing,
IT IS HEREBY ORDERED that:
1. Plaintiff's motion for leave to file a first supplemental complaint is DENIED. (Dkt. No. 13.) Plaintiff shall instead file a document entitled First Amended Complaint which will be the operative complaint in this action.*fn3 Plaintiff must file and serve his First Amended Complaint on or before December10, 2010.
2. The hearing on defendants' motion to dismiss is hereby vacated. That motion is DENIED as moot, without prejudice. (Dkt. No. 11.) Defendants retain the right to timely file a subsequent motion to dismiss, if so desired.
IT IS SO ORDERED.