Free Order - District Court of California - California

Case 3:08-cv-00589-H-JMA

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Filed 05/23/2008

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA COPERNICO MAMERTO, Plaintiff, vs. CASE NO. 08-CV-0589-H (JMA) ORDER: (1) DECLINING TO GRANT EX PARTE INJUNCTIVE RELIEF (2) SETTING SCHEDULE REGARDING REQUEST FOR PRELIMINARY INJUNCTIVE RELIEF; AND (3) DENYING AS MOOT MOTION TO DISMISS FIRST AMENDED COMPLAINT

CITI RESIDENTIAL LENDING and SPECIALIZED LOAN SERVICING, LLC, Defendants.

On May 22, 2008, Plaintiff Copernico Mamerto ("Plaintff"), proceeding pro se, submitted a second amended complaint and an ex parte motion for temporary restraining order ("TRO"). (Doc. Nos. 14, 16.) Plaintiff's first amended complaint did not state a basis for the Court's subject matter jurisdiction. (See Doc. Nos. 3, 5.) The Court issued an order to show cause on this question, and subsequently granted Plaintiff leave to file a second amended complaint based on Plaintiff's response to the order. (See Doc. Nos. 5-6, 8.) On May 23, 2008, Plaintiff submitted certain exhibits that were inadvertently omitted from his initial filing of the second amended complaint. The Court has
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Case 3:08-cv-00589-H-JMA

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instructed the Clerk to file the exhibits with the second amended complaint. As a result of the omission, the Court considers the effective filing date of the second amended complaint to be May 23, 2008, which is still within the time limit set by the Court's previous order. (See Doc. No. 8.) Of the two named defendants, only Specialized Loan Servicing, LLC ("SLS") has appeared in this matter. SLS submitted a motion to dismiss the first amended complaint on May 6, 2008. (Doc. No. 9.) Plaintiff indicates that he served the latest documents on both defendants by mail, though Plaintiff has not yet submitted proof of service for defendant Citi Residential Lending. The Court reminds any corporate parties that they may be required to file a Notice of Parties with Financial Interest if they have not done so already. See Local Civil Rule 40.2. Plaintiff filed a previous ex parte motion for TRO, seeking to prevent the foreclosure of his residence, on April 22, 2008. (Doc. No. 6.) The Court denied that request without prejudice, concluding that Plaintiff's motion did not explain why ex parte relief was appropriate and did not meet the general requirements for preliminary injunctive relief. (Doc. No. 7.) Motion for Temporary Restraining Order Having reviewed Plaintiff's request, the Court declines to grant ex parte injunctive relief. If he has not done so already, Plaintiff shall serve Citi Residential Lending with a copy of the summons and complaint including any inadvertently omitted exhibits, his current motion for a TRO, and a copy of this order. The Court sets a hearing on the question of whether to grant a TRO or preliminary injunction for June 16, 2008 at 10:30 a.m. Defendants shall file any opposing briefs on or before June 2, 2008. Plaintiff's optional reply brief is due June 9, 2008. Any party entering a special appearance for the purpose of opposing the request for a TRO shall so indicate in its brief. The Court may exercise its discretion to submit this motion on the papers without oral argument. ///
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Case 3:08-cv-00589-H-JMA

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Filed 05/23/2008

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SLS's Motion to Dismiss the First Amended Complaint Since Plaintiff has submitted a second amended complaint, the Court concludes that SLS's motion to dismiss the first amended complaint is moot and denies it accordingly. Conclusion The Court declines to award ex parte injunctive relief and sets the schedule indicated above. The Court denies SLS's motion to dismiss the first amended complaint as moot. IT IS SO ORDERED. DATED: May 23, 2008 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT COPIES TO: All parties of record.

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