Gazian et al v. Wells Fargo Bank NA et al

Filing 100

ORDER denying 76 Motion to Strike; granting 77 Motion to Amend/Correct. Plaintiffs shall file their amended complaint on or before 6/4/2014. Signed by Judge David G Campbell on 5/29/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ken Gazian, et al.,

No. CV-13-01312-PHX-DGC
Plaintiffs,

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v.

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ORDER

Wells Fargo Bank NA, et al.,

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Defendants.

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Plaintiffs Ken Gazian, Pierre Investments, Inc., and Aragadz Foods, Inc. d/b/a

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Devanche Jewelers, along with cross-defendants Hubert Kelly and Kelly & Kelly, P.C.

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(collectively the “Kelly Defendants”), have filed a motion to strike Defendant Wells

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Fargo Bank NA’s answer and crossclaim (Doc. 56). Doc. 76. Plaintiffs have also filed a

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second motion for leave to file a second amended complaint. Doc. 77. The motions are

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fully briefed.1

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I.

Motion to Strike.

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Plaintiffs and the Kelly Defendants argue that the Court should strike Wells

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Fargo’s answer and crossclaim because it was filed after the October 28, 2013 deadline

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for joining parties, amending pleadings, and filing supplemental pleadings. Doc. 76 at 3.

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The answer and crossclaim was filed on November 15, 2013 (Doc. 56), was a timely

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response to Plaintiff’s amended complaint filed on October 28, 2013 (Doc. 51), and was

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Plaintiffs’ request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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not an amended or supplemental pleading. The October 28, 2013 deadline therefore did

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not apply and Wells Fargo was not required to show good cause.

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II.

Motion to Amend.

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The Court denied Plaintiffs’ previous motion to amend because it was filed after

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the deadline for amending pleadings and Plaintiffs failed to address the good cause

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requirement of Rule 16 for extending a case management deadline. Doc. 73. Plaintiffs’

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renewed motion to amend does address the good cause standard. It asserts that Plaintiffs

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had no need to amend and narrow their claims until Wells Fargo asserted a crossclaim

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against the Kelly Defendants on November 15, 2013.

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Rule 16’s good cause standard primarily considers the diligence of the party

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seeking the amendment. Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 609 (9th

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Cir. 1992). “The district court may modify the pretrial schedule ‘if it cannot reasonably

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be met despite the diligence of the party seeking the extension.’” Id. (quoting Fed. R.

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Civ. P. 16 advisory committee notes (1983 amendment)).

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The Court is persuaded that Plaintiffs’ need to amend their complaint arose from

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Wells Fargo’s crossclaim. Plaintiffs sought leave to file a responsive second amended

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complaint three weeks later (Doc. 59), which was reasonably diligent. The fact that

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Plaintiffs waited four weeks after the Court denied their motion to amend before filing

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the present motion does not alter this conclusion; the Court is not persuaded that a delay

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of four weeks shows a lack of diligence sufficient to defeat good cause.

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IT IS ORDERED that Plaintiffs’ and the Kelly Defendants’ motion to strike

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(Doc. 76) is denied and Plaintiffs’ motion for leave to file a second amended complaint

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(Doc. 77) is granted.

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June 4, 2014.

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Plaintiffs shall file their amended complaint on or before

Dated this 29th day of May, 2014.

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