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James Gary Hamilton, et al v. Randall D. Naiman and Naiman Law Group

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 23, 2011

JAMES GARY HAMILTON, ET AL.,
PLAINTIFFS,
v.
RANDALL D. NAIMAN AND NAIMAN LAW GROUP, PC; US BANK, N.A., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge

ORDER (1) DENYING WITHOUT PREJUDICE MOTION TO DISMISS FILED BY DEFENDANTS AND (2) GRANTING DEFENDANT U.S. BANK N.A.'S DEFAULT MOTION TO SET ASIDE

In this mortgage foreclosure action, Defendants Randall D. Naiman and Naiman Law Group (collectively "Naiman") filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), strike pursuant to California Code of Civil Procedure Section 425.16(a), or alternatively for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). The motion is set on this court's calendar for September 9, 2011. Defendant U.S. Bank N.A. ("U.S. Bank") filed a motion to set aside entry of default, which is set on this court's calendar for September 16, 2011. For the reasons which follow, Naiman's motion is DENIED WITHOUT PREJUDICE, and U.S. Bank's motion is GRANTED.

On August 8, 2011, the court issued an order granting with leave to amend Defendant JPMorgan Chase Bank, N.A.'s motion to dismiss the complaint. (See docket no. 42 ("August 8 Order").) On August 19, 2011 Plaintiffs timely filed their first amended complaint. An amended complaint supersedes a prior complaint as a pleading. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), aff'd on other grounds, Humana, Inc. v. Forsyth, 525 U.S. 299 (1999). Accordingly, Naiman's motion is DENIED as moot. This order is WITHOUT PREJUDICE to Naiman filing, as appropriate, a motion to dismiss, strike or for a more definite pleading with respect to the first amended complaint.

The August 8 Order also denied Plaintiffs' motion for default judgment against U.S. Bank, among other things. (See docket no. 42 at 4.) For the reasons stated therein, U.S. Bank's motion to set aside the entry of default is GRANTED.

For the foregoing reasons, it is hereby ORDERED as follows: 1. The motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), strike pursuant to California Code of Civil Procedure Section 425.16(a), or alternatively for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e) filed by Defendants Randall D. Naiman and Naiman Law Group is DENIED WITHOUT PREJUDICE.

2. Defendants shall file a response to the amended complaint, if any, within the time provided in Federal Rule of Civil Procedure 15(a)(3).

3. The motion to set aside entry of default filed by Defendant U.S. Bank N.A. is GRANTED. 4. The hearings set for these matters on September 9 and 16, 2011, respectively, are hereby VACATED.

IT IS SO ORDERED.

20110823

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