Narog v. New York Community Bank, et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 06/17/11 DENYING the 38 and 41 Motions to Dismiss as moot; the third amended complaint is DISMISSED with leave to amend within 30 days. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CORY NAROG
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Plaintiff,
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No. CIV S-10-3265 JAM KJN (TEMP) PS
vs.
NEW YORK COMMUNITY BANK,
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Defendants.
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ORDER
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This action was removed from state court on December 7, 2010, and was referred
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to the undersigned after plaintiff’s counsel was permitted to withdraw from representation. Dkt.
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nos. 1, 37. The motion to withdraw was granted May 25, 2011. Dkt. no. 36. Prior to the
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cessation of plaintiff’s representation by counsel, plaintiff filed a second amended complaint, in
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pro per. Dkt. no. 34. Because plaintiff was represented by counsel at that point, the second
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amended complaint should not have been filed. However, by order filed March 29, 2011, the
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district judge allowed the filing of a second amended complaint, and accordingly, the second
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amended complaint will not be stricken in light of the pendency of the motion to withdraw. Dkt.
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no. 32.
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On May 26, 2011, defendant Federal Home Loan Mortgage Corporation filed a
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motion to dismiss, noticed for hearing on June 30, 2011 and defendant MTC Financial filed a
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motion to dismiss, noticed for hearing on August 4, 2011. Dkt. nos. 38, 41. On June 13, 2011,
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plaintiff filed a third amended complaint.1 Under Federal Rule of Civil Procedure 15(a)(1)(B),
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plaintiff’s third amended complaint is timely and moots the pending motions to dismiss.
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However, plaintiff’s third amended complaint references the second amended complaint and
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appears to contain argumentative passages addressed to the motions to dismiss. Local Rule
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15-220 requires that an amended complaint be complete in itself without reference to any prior
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pleading. This requirement is because, as a general rule, an amended complaint supersedes the
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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an
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amended complaint, the original pleading no longer serves any function in the case. Therefore,
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in an amended complaint, as in an original complaint, each claim and the involvement of each
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defendant must be sufficiently alleged. Because plaintiff’s third amended complaint is not
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complete, the complaint will be dismissed with leave to amend.
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In the amended complaint, plaintiff must set forth the jurisdictional grounds upon
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which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a). Further, plaintiff
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must demonstrate how the conduct complained of has resulted in a deprivation of plaintiff's
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federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
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Accordingly, IT IS HEREBY ORDERED that:
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1. Defendant’s motions to dismiss (dkt. nos. 38, 41) are denied as moot. The
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hearing dates of June 30, 2010, and August 4, 2010, are vacated.
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2. The third amended complaint is dismissed with leave to amend. Plaintiff is
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granted thirty days from the date of service of this order to file a fourth amended complaint that
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complies with the requirements of the Federal Rules of Civil Procedure, and the Local Rules of
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Practice; the fourth amended complaint must bear the docket number assigned this case and must
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be labeled “Fourth Amended Complaint;” plaintiff must file an original and two copies of the
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The third amended complaint was filed twice. Dkt. nos. 42, 43.
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fourth amended complaint; failure to file a fourth amended complaint in accordance with this
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order will result in a recommendation that this action be dismissed.
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DATED: June 17, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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narog.cuo
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