Velasquez v. Chase Home Finance LLC et al
Filing
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ORDER signed by Magistrate Judge John F. Moulds on 6/20/11 ORDERING that Plaintiff's 6/1/11 First Amended Complaint is stricken; Chase's 6/14/11 motion to dismiss is denied and the 8/4/11 hrg on this motion is vacated; the hrg date on Chase 's 4/25/11 motion to dismiss currently scheduled for 6/23/11 is continued to 8/4/11 at 11:00 a.m. in courtroom no. 26; and Plaintiff shall file opposition, if any, to the 4/25/11 motion to dismiss, no later than 7/21/11. Failure to file opposition and appear at the hrg will be deemed as a statement of non-opposition and shall result in a recommendation that this action be dismissed. (Becknal, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RODOLFO VELASQUEZ,
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Plaintiff,
vs.
CHASE HOME FINANCE LLC, et al.,
Defendants.
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No. CIV 2:11-cv-1019-GEB-JFM
ORDER
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Plaintiff, proceeding pro se and in forma pauperis, filed this action in the Solano
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County Superior Court against defendants Chase Home Finance LLC (“Chase”) and Fannie Mae
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pursuant to numerous causes of action, including the Fair Debt Collection Practices Act, 15
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U.S.C. § 1692, et seq.; the Truth in Lending Act, 12 U.S.C. § 1601, et seq.; and the Real Estate
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Settlement Procedures Act, 12 U.S.C. § 2601, et seq. On April 15, 2011, the action was removed
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to this court by Chase. On April 25, 2011, Chase filed a motion to dismiss, which is scheduled to
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be heard before the undersigned on June 23, 2011.
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On June 1, 2011, plaintiff filed a first amended complaint in which he seeks to
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dismiss his federal claims and have this action remanded to state court. See Doc. No. 11. On
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June 14, 2011, Chase filed a motion to dismiss the first amended complaint scheduled to be
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heard on August 4, 2011.
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At this procedural posture, plaintiff may not unilaterally amend his complaint
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without leave of court. See Fed. R. Civ. P. 15(a). Plaintiff is informed that if he wishes to
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amend his complaint to dismiss the federal causes of action, he must do so in compliance with
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Federal Rule of Civil Procedure 15(a) and Local Rule 137(c). Accordingly, the first amended
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complaint will be stricken and Chase’s June 14, 2011 motion to dismiss will be denied.
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Additionally, the docket reveals that plaintiff has not filed an opposition or
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statement of non-opposition to Chase’s April 25, 2011 motion to dismiss. Local Rule 230(c)
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provides that opposition to the granting of a motion must be filed fourteen days preceding the
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noticed hearing date. The Rule further provides that “[n]o party will be entitled to be heard in
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opposition to a motion at oral arguments if written opposition to the motion has not been timely
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filed by that party.” In addition, Local Rule 230(i) provides that failure to appear may be deemed
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withdrawal of opposition to the motion or may result in sanctions. Finally, Local Rule 110
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provides that failure to comply with the Local Rules “may be grounds for imposition of any and
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all sanctions authorized by statute or Rule or within the inherent power of the Court.”
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Good cause appearing, IT IS HEREBY ORDERED that:
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1. Plaintiff’s June 1, 2011 first amended complaint is stricken;
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2. Chase’s June 14, 2011 motion to dismiss is denied and the August 4, 2011
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hearing on this motion is vacated;
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3. The hearing date on Chase’s April 25, 2011 motion to dismiss currently
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scheduled for June 23, 2011 is continued to August 4, 2011 at 11:00 a.m. in courtroom no. 26;
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and
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4. Plaintiff shall file opposition, if any, to the April 25, 2011 motion to dismiss,
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no later than July 21, 2011. Failure to file opposition and appear at the hearing will be deemed as
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a statement of non-opposition and shall result in a recommendation that this action be dismissed
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pursuant to Federal Rule of Civil Procedure 41(b).
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DATED: June 20, 2011.
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