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Francisco M. Gumataotao, An Individual v. Bnc Mortgage

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 26, 2011

FRANCISCO M. GUMATAOTAO, AN INDIVIDUAL, AND ROSE P. GUMATAOTAO, AN INDIVIDUAL,
PLAINTIFFS,
v.
BNC MORTGAGE, INC., A DELAWARE CORPORATION; ET AL., DEFENDANTS.

The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER DENYING MOTIONS TO DISMISS AND TO EXPUNGE NOTICE OF LIS PENDENS

On May 11, 2011, Defendants removed this action from California state court. After Defendants moved to dismiss, Plaintiffs, who were then proceeding pro se failed to file an opposition. The Court ordered them to show why the motion should not be granted as unopposed. Plaintiffs responded, and Joseph Renteria, Esq. substituted in as their counsel. The Court then moved the hearing date to September 26, and extended Plaintiffs' time to respond.

Plaintiffs have now responded, admitting that their complaint fails to meet federal pleading standards, but requesting leave to amend.

At this stage of the proceedings, amendment is a common event. Had Plaintiffs been prepared to amend their complaint within 21 days after being served with the motion to dismiss, they could have done so without leave. Fed. R. Civ. P. 15(a)(1)(B). At this point, the Court's leave is required. But at the same time, the Court is directed to "freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2).

Ordinarily at this early stage of proceedings, leave to amend is readily given unless it is clear amendment would be futile. See Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curium) (holding that amendment should be allowed, unless it is clear amendment would not cure the complaint's deficiencies). The motion to dismiss is therefore DENIED. The motion to expunge lis pendens, which depends largely on the motion to dismiss, is likewise DENIED WITHOUT PREJUDICE.

The Court is, however, mindful that Plaintiffs' substitutions of counsel have delayed this case somewhat. Plaintiffs shall file their amended complaint no later than 14 calendar days from the date this order is issued. Any requests for extension of time must be supported by a showing of good cause. If Plaintiffs do not file their amended complaint within the time permitted, this action will be dismissed without prejudice and the notice of lis pendens expunged.

IT IS SO ORDERED.

20110926

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