UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 28, 2012
STEPHANIE RUIZ, ET AL.,
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO FILE THIRD
SEAL EXHIBITS TO THIRD AMENDED
COMPLAINT, AND SERVE THIRD AMENDED COMPLAINT THROUGH THE
CALIFORNIA SECRETARY OF STATE (Documents 96 and 98)
On February 23, 2012, Plaintiff Hector Casillas ("Plaintiff") filed an Ex Parte Motion for Leave to File a Third Amended Complaint. Doc. 96. Plaintiff re-filed the application on February 27, 2012. Doc. 98. Plaintiff seeks to file a Third Amended Complaint to correct the name of a defendant. Plaintiff also seeks to seal the exhibits attached to the Third Amended Complaint and seeks permission from the Court to serve the Third Amended Complaint through the California Secretary of State.
This action was removed from the Fresno County Superior Court on September 9, 2009. Initially, only two Defendants appeared in this action, Aurora Loan Services, Inc. and Homecoming Financial. They have since been dismissed. On February 21, 2012, Defendant Stephanie Ruiz filed an answer to the Second Amended Complaint. The remaining served Defendants did not file responsive pleadings and the Clerk has entered default against them.
Pursuant to Rule 15(a), "leave [to amend] is to be freely given when justice so requires." Fed. R. Civ. P. 15. "[L]eave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997).
Plaintiff seeks to file a Third Amended Complaint to properly identify Defendant Mortgage Express. Plaintiff had previously attempted service on Mortgage Express but was unsuccessful. Declaration of Karen L. Lynch ("Lynch Dec."), ¶¶ 7, 8. Defendant Mortgage Express is currently a forfeited corporation.
Plaintiff's counsel was informed by the California Secretary of State that in order for the Secretary to provide notice of this action, the name of Defendant Mortgage Express must be corrected to reflect the correct name of "Mortgage Express which will do business in California as Mortgage Express Home Loans." Lynch Dec., ¶ 10. Plaintiff mistakenly left out the word "which" in the Second Amended Complaint and the California Secretary of State declined to serve Defendant Mortgage Express.
In the interests of justice, the Court GRANTS Plaintiff's motion to file a Third Amended Complaint to reflect the correct name of Defendant Mortgage Express. Plaintiff's request to seal the exhibits to the Third Amended Complaint is also GRANTED.*fn1 Finally, Plaintiff has demonstrated that service of the Third Amended Complaint on Defendant "Mortgage Express which will do business in California as Mortgage Express Home Loans" through the California Secretary of State is warranted and the request is GRANTED. Cal. Corp. Code § 1702(a).
IT IS SO ORDERED.