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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ken Gazian, et al., No. CV-13-01312-PHX-DGC Plaintiffs, 10 11 v. 12 ORDER Wells Fargo Bank NA, et al., 13 Defendants. 14 Plaintiffs Ken Gazian, Pierre Investments, Inc., and Aragadz Foods, Inc. d/b/a 15 Devanche Jewelers, along with cross-defendants Hubert Kelly and Kelly & Kelly, P.C. 16 (collectively the “Kelly Defendants”), have filed a motion to strike Defendant Wells 17 Fargo Bank NA’s answer and crossclaim (Doc. 56). Doc. 76. Plaintiffs have also filed a 18 second motion for leave to file a second amended complaint. Doc. 77. The motions are 19 fully briefed.1 20 I. Motion to Strike. 21 Plaintiffs and the Kelly Defendants argue that the Court should strike Wells 22 Fargo’s answer and crossclaim because it was filed after the October 28, 2013 deadline 23 for joining parties, amending pleadings, and filing supplemental pleadings. Doc. 76 at 3. 24 The answer and crossclaim was filed on November 15, 2013 (Doc. 56), was a timely 25 response to Plaintiff’s amended complaint filed on October 28, 2013 (Doc. 51), and was 26 27 1 28 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). 1 not an amended or supplemental pleading. The October 28, 2013 deadline therefore did 2 not apply and Wells Fargo was not required to show good cause. 3 II. Motion to Amend. 4 The Court denied Plaintiffs’ previous motion to amend because it was filed after 5 the deadline for amending pleadings and Plaintiffs failed to address the good cause 6 requirement of Rule 16 for extending a case management deadline. Doc. 73. Plaintiffs’ 7 renewed motion to amend does address the good cause standard. It asserts that Plaintiffs 8 had no need to amend and narrow their claims until Wells Fargo asserted a crossclaim 9 against the Kelly Defendants on November 15, 2013. 10 Rule 16’s good cause standard primarily considers the diligence of the party 11 seeking the amendment. Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 609 (9th 12 Cir. 1992). “The district court may modify the pretrial schedule ‘if it cannot reasonably 13 be met despite the diligence of the party seeking the extension.’” Id. (quoting Fed. R. 14 Civ. P. 16 advisory committee notes (1983 amendment)). 15 The Court is persuaded that Plaintiffs’ need to amend their complaint arose from 16 Wells Fargo’s crossclaim. Plaintiffs sought leave to file a responsive second amended 17 complaint three weeks later (Doc. 59), which was reasonably diligent. The fact that 18 Plaintiffs waited four weeks after the Court denied their motion to amend before filing 19 the present motion does not alter this conclusion; the Court is not persuaded that a delay 20 of four weeks shows a lack of diligence sufficient to defeat good cause. 21 IT IS ORDERED that Plaintiffs’ and the Kelly Defendants’ motion to strike 22 (Doc. 76) is denied and Plaintiffs’ motion for leave to file a second amended complaint 23 (Doc. 77) is granted. 24 June 4, 2014. 25 Plaintiffs shall file their amended complaint on or before Dated this 29th day of May, 2014. 26 27 28 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?