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Sean M. Park, Michelle Park v. Wachovia Mortgage

April 13, 2011

SEAN M. PARK, MICHELLE PARK
PLAINTIFFS,
v.
WACHOVIA MORTGAGE, FSB, WACHOVIA MORTGAGE CORPORATION, EXECUTIVE TRUST SERVICES, CHICAGO TITLE
COMPANY PARK CAMINO BRANCH,
SHEPPARD RICHTER, DOES 1-10 DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are Plaintiffs' Motion for Leave to File Second Amended Complaint. (ECF No. 83); Plaintiffs' Ex Parte Application for Stay of Expungement of Pendency of Action Pending Appeal (ECF No. 90); Plaintiffs Ex Parte Motion to File Supplemental Reply (ECF No. 99); and Plaintiffs' Ex Parte Motion to Strike Defendants Surreply Pleading (ECF No. 106).

BACKGROUND

On July 26, 2010, Plaintiffs Sean M. Park and Michelle Park, proceeding pro se, initiated this action by filing a Complaint. (ECF No. 1). Plaintiffs filed an Amended Complaint on August 11, 2010. (ECF No. 3).

On August 25, 2010, Well Fargo Bank ("Wells Fargo") filed a Motion to Dismiss. (ECF No. 11).

On January 5, 2011, Defendant Wells Fargo filed an Ex Parte Motion to Expunge Notice of Pendency of Action, or Alternatively, to Require Plaintiffs to Post a Bond. (ECF No. 76).

On January 12, 2011, this Court issued an Order dismissing each of Plaintiffs's claims against Defendant Wells Fargo and permitting Plaintiffs to file a motion for leave to file a second amended complaint. (ECF No. 78).

On January 26, 2011, this Court issued an Order granting Defendants' Ex Parte Motion to Expunge Notice of Pendency of Action and allowing Defendant to file a motion for attorney's fees. (ECF No. 85). On that same day, Plaintiffs filed a Motion for Leave to File Second Amended Complaint. (ECF No. 83).

On January 27, 2011, Plaintiffs filed a Notice of Appeal of the Order granting expungement of the lis pendens to the Ninth Circuit Court of Appeals. (ECF No. 86). On that same day, Plaintiffs filed an Ex Parte Application for Stay of Expungement of Pendency of Action Pending Appeal.*fn1 (ECF No. 90).

On February 22, 2011, Plaintiffs filed an Ex Parte Motion to File Supplemental Reply.*fn2 (ECF No. 99). On March 11, 2011, Plaintiffs filed an Ex Parte Motion to Strike Defendants Surreply Pleading.*fn3 (ECF No. 106).

On March 16, 2011, the Ninth Circuit dismissed the appeal for lack of jurisdiction. (ECF No. 107). On April 7, 2011, mandate was issued by the Ninth Circuit. (ECF No. 110).

DISCUSSION

Rule 15 of the Federal Rules of Civil Procedure mandates that the court "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court offered several factors for district courts to consider in deciding whether to grant a motion to amend under Rule 15(a):

In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of ...


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