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Lorena Meyer v. Santander Consumer Usa


March 12, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


This is a federal question action brought by plaintiff Lorena Meyer, proceeding pro se and in forma pauperis, involving a claim for violation of the federal Fair Debt Collection Practices Act. It also includes supplemental state law claims for violation of California's Rosenthal Fair Debt Collection Practices Act and invasion of privacy.*fn1 Defendant Santander Consumer USA filed an answer on February 10, 2012. (Dkt. No. 40.)

On March 8, 2012, plaintiff filed a "Verification Santander has Unclean Hands and Motion to Amend Complaint if Necessary After Further Review." (Dkt. No. 43.) Plaintiff failed to notice the motion for hearing in accordance with E.D. Cal. L.R. 230. Nevertheless, after reviewing the papers in support of the motion, the court concludes that further briefing and oral argument would not be of material assistance in resolving the motion.

Rule 15 of the Federal Rules of Civil Procedure provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days of serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2).

In this case, defendant filed a motion to dismiss plaintiff's second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) on November 14, 2011. (Dkt. No. 21.)*fn2 Plaintiff did not amend her complaint, or file a motion to amend her complaint, within 21 days of service with defendant's motion. Accordingly, leave of court is required for further amendment to plaintiff's complaint.

Although leave to amend should generally be freely given "when justice so requires," plaintiff has failed to provide any basis for further amendment here. Plaintiff's motion indicates that she received notice of a proposed class action settlement involving Santander. She states that she "does not know the exact circumstances in each of the approximately 15,873 victim's [sic] cases, but it is possible Santander Consumer USA also intentionally induced or forced default in these cases for profit." (Dkt. No. 43 at 2.) She claims that the class action lends additional credence to her various claims against defendant Santander and shows that Santander has unclean hands. However, none of this information relates specifically to plaintiff's individual claims against defendant. Allegations regarding Santander's actions with respect to third parties not involved in the instant case are extraneous and should not be included in the pleadings in this action. Accordingly, leave to amend is not warranted.*fn3

The court also noted that plaintiff has recently filed several motions, including the instant motion, without properly noticing the motion for hearing pursuant to the Local Rules. Plaintiff must follow the procedures for filing and noticing motions outlined in E.D. Cal. L.R. 230 (for non-discovery motions) and 251 (for discovery motions). Available hearing dates can be obtained from the undersigned's courtroom deputy clerk at (916) 930-4199. Plaintiff is put on notice that any future motions not in compliance with the above-mentioned Local Rules and the Federal Rules of Civil Procedure will be stricken.


For the reasons discussed above, IT IS HEREBY ORDERED that plaintiff's motion to amend complaint (dkt. no. 43) is denied.



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