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Kathleen Givant v. Vitek Real Estate Industries Group

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 6, 2012

KATHLEEN GIVANT,
PLAINTIFF,
v.
VITEK REAL ESTATE INDUSTRIES GROUP, INC., DBA VITEK MORTGAGE GROUP, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff originally initiated this action in the Superior Court of the State of California for the County of Sacramento against Vitek Real Estate Industries Group, Inc., dba Vitek Mortgage Group("Vitek"), Everhome Mortgage Company and MTC Financial Inc., dba Trustee Corps ("MTC"). Vitek subsequently removed the action to this Court and, on December 6, 2011, filed a Motion to Dismiss (ECF No. 4), which was scheduled to be heard on the Court's regular January 26, 2012, calendar.

Less than two weeks later, on December 15, 2011, Defendant MTC filed its own Motion to Dismiss (ECF No. 8), which was set for hearing before this Court on February 9, 2012. On January 10, 2012, the Court continued the hearing on Vitek's Motion from January 26 to February 9 to be heard in conjunction with the after-filed MTC Motion.

Three days later, on January 13, Plaintiff filed a First Amended Complaint ("FAC") (ECF No. 14). Apparently believing Plaintiff's amended pleading rendered their then-pending Motions to Dismiss moot, both Vitek and MTC filed additional Motions to Dismiss Plaintiffs' FAC (ECF Nos. 19 and 22). Since over twenty-one (21) days had passed since Vitek filed and served its original Motion to Dismiss, however, Plaintiff was required to seek either leave of this Court or the written consent of Defendants prior to amending her Complaint. See Fed. Rule Civ. Pro. 15(a) (amendment permitted as a matter of course, and without a court order or the opposing party's consent, only within, as pertinent here, twenty-one (21) days after a responsive pleading is filed). This Court has not granted Plaintiff permission to amend her Complaint, nor has the Court been provided with Defendants' written consent to any amendment.

Accordingly, Plaintiff's FAC is hereby stricken from the record. There being no amended pleading left to dismiss, both Vitek's and MTC's Motions to Dismiss the FAC (ECF Nos. 19 and 22) are DENIED without prejudice.

Finally, the February 9, 2012, hearing on Vitek's and MTC's original Motions to Dismiss (ECF Nos. 4 and 8) is hereby vacated and continued to March 8, 2012, at 2:00 p.m. in Courtroom 7.

IT IS SO ORDERED.

20120206

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