Gazian et al v. Wells Fargo Bank NA et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ken Gazian, et al.,
Wells Fargo Bank NA, et al.,
Plaintiffs Ken Gazian, Pierre Investments, Inc., and Aragadz Foods, Inc. d/b/a
Devanche Jewelers, along with cross-defendants Hubert Kelly and Kelly & Kelly, P.C.
(collectively the “Kelly Defendants”), have filed a motion to strike Defendant Wells
Fargo Bank NA’s answer and crossclaim (Doc. 56). Doc. 76. Plaintiffs have also filed a
second motion for leave to file a second amended complaint. Doc. 77. The motions are
Motion to Strike.
Plaintiffs and the Kelly Defendants argue that the Court should strike Wells
Fargo’s answer and crossclaim because it was filed after the October 28, 2013 deadline
for joining parties, amending pleadings, and filing supplemental pleadings. Doc. 76 at 3.
The answer and crossclaim was filed on November 15, 2013 (Doc. 56), was a timely
response to Plaintiff’s amended complaint filed on October 28, 2013 (Doc. 51), and was
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).
not an amended or supplemental pleading. The October 28, 2013 deadline therefore did
not apply and Wells Fargo was not required to show good cause.
Motion to Amend.
The Court denied Plaintiffs’ previous motion to amend because it was filed after
the deadline for amending pleadings and Plaintiffs failed to address the good cause
requirement of Rule 16 for extending a case management deadline. Doc. 73. Plaintiffs’
renewed motion to amend does address the good cause standard. It asserts that Plaintiffs
had no need to amend and narrow their claims until Wells Fargo asserted a crossclaim
against the Kelly Defendants on November 15, 2013.
Rule 16’s good cause standard primarily considers the diligence of the party
seeking the amendment. Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 609 (9th
Cir. 1992). “The district court may modify the pretrial schedule ‘if it cannot reasonably
be met despite the diligence of the party seeking the extension.’” Id. (quoting Fed. R.
Civ. P. 16 advisory committee notes (1983 amendment)).
The Court is persuaded that Plaintiffs’ need to amend their complaint arose from
Wells Fargo’s crossclaim. Plaintiffs sought leave to file a responsive second amended
complaint three weeks later (Doc. 59), which was reasonably diligent. The fact that
Plaintiffs waited four weeks after the Court denied their motion to amend before filing
the present motion does not alter this conclusion; the Court is not persuaded that a delay
of four weeks shows a lack of diligence sufficient to defeat good cause.
IT IS ORDERED that Plaintiffs’ and the Kelly Defendants’ motion to strike
(Doc. 76) is denied and Plaintiffs’ motion for leave to file a second amended complaint
(Doc. 77) is granted.
June 4, 2014.
Plaintiffs shall file their amended complaint on or before
Dated this 29th day of May, 2014.
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