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Donato Taa, et al v. Chase Home Finance

February 15, 2012

DONATO TAA, ET AL.,
PLAINTIFFS,
v.
CHASE HOME FINANCE, LLC, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Edward J. Davila United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING MOTION TO STRIKE SECOND AMENDED COMPLAINT; STRIKING THIRD AMENDED COMPLAINT; AND DENYING PLAINTIFFS' MOTION FOR APPOINTMENT OF COUNSEL

(Re: Docket Nos. 36, 41)

Pending before the court is Defendants' motion to strike the Second Amended Complaint ("SAC") and Plaintiffs' motion to appoint counsel. The court finds these motions are appropriate 19 for determination without oral argument. See Civil L.R. 7-1(b). For the reasons discussed below, 20 the motion to strike is GRANTED, and the motion to appoint counsel is DENIED. 21

I.MOTION TO STRIKE

On February 7, 2011, Plaintiffs filed the Complaint. See Docket No. 1. On April 13, 2011, Defendants filed a motion to dismiss the Complaint. See Docket No. 14. On April 22, 2011, 24 Plaintiffs filed the First Amended Complaint ("FAC"). See Docket No. 19. On May 11, 2011, 25 Defendants filed a motion to dismiss the FAC. See Docket No. 24. 26

On September 1, 2011, Plaintiffs filed a Second Amended Complaint without leave of 27 court. See Docket No. 27. On September 28, 2011, the court issued an order construing the improperly filed Second Amended Complaint as a motion to amend and striking the Second 2 Amended Complaint. See Docket No. 28. On October 7, 2011, Plaintiffs filed a motion for 3 reconsideration of the court's order striking the Second Amended Complaint. See Docket No. 29. 4

Plaintiffs did not seek leave of court to file the motion for reconsideration. On October 19, 2011, 5 the court denied the motion for reconsideration and explaining both the requirement to obtain leave 6 of court in order to amend a complaint pursuant to Fed. R. Civ. P. 15(a) and the requirement to 7 obtain leave of court in order to file a motion for reconsideration pursuant to Civil L.R. 7-9(a). See 8 Docket No. 32. 9

On October 21, 2011, the parties appeared for oral argument on Defendants' motion to 10 dismiss the FAC. At the hearing, the court issued a tentative ruling to grant the motion to dismiss with leave to amend, took the matter under submission, and indicated a written order would follow. 12

See Docket No. 34. 13

On November 4, 2011, Plaintiffs filed another Second Amended Complaint ("SAC") 14 without leave of court adding new causes of action, including housing discrimination. See Docket 15 No. 35. On November 28, 2011, Defendants moved to strike the SAC. See Docket No. 36. Any 16 opposition to that motion was due no later than December 12, 2011. See id. No opposition was 17 filed by that date. On December 16, 2011, Plaintiffs filed a Third Amended Complaint ("TAC") 18 without leave of court. On December 19, 2011, Plaintiffs filed a reply brief noting that Plaintiffs 19 had failed to oppose the motion to strike the SAC. See Docket No. 38. One month after the notice 20 of non-opposition was filed, on January 19, 2012, Plaintiffs filed an opposition to Defendants' 21 motion to strike the SAC. See Docket No. 43. 22

A plaintiff may amend his complaint on his own once as a matter of course. See Fed. R. Civ. P. 15(a). Thereafter, a party may be permitted to amend with leave of court, and the court 24 should freely give leave where required by justice. See id. However, leave need not be granted 25 where the amended complaint would cause the opposing party undue prejudice, constitute an 26 exercise in futility, create undue delay, or is sought in bad faith. See Janicki Logging Co. v. 27 pursuant to the requirements of Rule 15 requirements can supersede the original. Murray v. 2 Archambo, 132 F.3d 609, 612 (10th Cir. 1998). An amendment that has been filed or served 3 without leave of court or consent of the defendants is without legal effect. Id. "On occasion, a 4 party's failure to comply with the requirements of Rule 15(a) will prompt courts to strike amended 5 pleadings - or to ignore them outright." Sapiro v. Encompass Ins., 221 F.R.D. 513, 517 (N.D. 6 Cal. 2004). 7

In Plaintiffs' late-filed opposition brief, Plaintiffs argue that the court granted them leave to 8 amend the complaint at the October 21, 2011 hearing. As noted above, the Court tentatively ruled 9 to dismiss the FAC with leave to amend and took the matter under submission with an order to 10 follow. See Docket No. 34. No such order has yet been issued. Until an order is issued, Plaintiffs do not have leave of Court to file an amended complaint. Furthermore, Plaintiffs' SAC and TAC 12 include causes of action not alleged in the FAC and not addressed by the motion to dismiss the 13 FAC. Thus, the SAC and TAC exceed the bounds of the amendments discussed at the October 21, 14 2011 hearing. 15

Plaintiffs' SAC and TAC were filed without leave of court and without the written 16 stipulation of the other parties. The Second and Third Amended Complaints therefore were filed in 17 violation of Rule 15 and have no legal effect. See Fed. R. Civ. P. 15(a)(2). The FAC remains the 18 operative complaint. Plaintiffs' leave to amend the FAC will be addressed when the court rules on 19 the pending ...


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