Gardner et al v. Nationstar Mortgage LLC et al

Filing 102

ORDER denying 88 Motion to Strike. See document for further details. Signed by Judge H Russel Holland on 08/07/2015.(REK)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

JAY N. GARDNER and RACHEL B.
GARDNER,

)
)
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Plaintiffs, )
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vs.
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NATIONSTAR MORTGAGE, LLC, et al.,
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Defendants.
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_______________________________________)
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JAY N. GARDNER and RACHEL B.
)
GARDNER,
)
)
Plaintiffs, )
)
vs.
)
)
NATIONSTAR MORTGAGE, LLC, et al.,
)
)
Defendants. )
_______________________________________)

No. 2:13-cv-1641-HRH
[Consolidated with
No. 2:13-cv-2478-HRH]

ORDER
Motion to Strike Fourth Amended Complaint1
Defendants Nationstar, T.D. Service Company, and U.S. Bank move to strike
plaintiffs’ fourth amended complaint in its entirety or, in the alternative, defendants seek

1

Docket No. 88.

Order – Motion to Strike Fourth Amended Complaint

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an order striking unauthorized amendments contained in the fourth amended complaint.
The motion is brought pursuant to Rules 12(f) and 15(a)(2), Federal Rules of Civil
Procedure, and Arizona Local Civil Rules 7.2 and 15.1(a) and (b). The motion is opposed
by plaintiffs.2
In connection with the rather complex consolidation of the -1641 case with
No. 2:13-cv-2478, Gardner v. Nationstar Mortgage, LLC, the court granted plaintiff leave
to file a fourth amended complaint.3
Defendants contend that plaintiffs failed to employ the case caption which the
court had used in authorizing a fourth amended complaint, and that a number of other
modifications were made to the proposed fourth amended complaint4 without leave of
court to effect those modifications. Plaintiffs concede that their fourth amended
complaint as filed5 contained modifications of their proposed fourth amended complaint.
Rule 12(f), Federal Rules of Civil Procedure, makes provision for motions to
strike. The court is authorized by this rule to strike “an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” The modifications which
plaintiffs made before filing their fourth amended complaint did not include any of the
type of material covered by Rule 12(f).
Rule 15(a)(2) provides that, in the situation under consideration, “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave.”
Plaintiffs did not have defendants’ consent, nor did plaintiffs seek leave of court to
modify the proposed fourth amended complaint. However, Rule 15(a)(2) goes on to
provide that “[t]he court should freely give leave when justice so requires.”
2

Docket No. 95.

3

Docket No. 71.

4

Docket No. 68-1.

5

Docket No. 82.

Order – Motion to Strike Fourth Amended Complaint

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Local Civil Rule 7.2(m)(1) also addresses motions to strike, and is somewhat
broader than the parallel federal rule. The local rule provides that a motion to strike may
be make if “any part of a filing ... is prohibited (or not authorized) by a statute, rule, or
court order.” In this case, the court’s order authorizing the filing of a fourth amended
complaint contemplated that the fourth amended complaint would be filed as proposed.6
The moving defendants contend that plaintiffs employed an expanded case caption
rather than the abbreviated one employed by the court in authorizing a fourth amended
complaint. Defendants do not contest the accuracy of plaintiffs’ case caption. This
objection to the fourth amended complaint is frivolous.
It is the court’s perception that the changes made by plaintiffs to their proposed
fourth amended complaint do not substantially alter plaintiffs’ claims, and in some
instances address changes in facts occurring between preparation of the proposed fourth
amended complaint and the filing of the fourth amended complaint. The modifications
have more to do with AMSL than the moving defendants. The moving defendants
suggest that they are surprised by the modification to the proposed fourth amended
complaint, but they have demonstrated no prejudice.
The court considers the lack of prejudice in connection with this motion for two
reasons. First, the court has an obligation under Rule 1 to facilitate the just, speedy, and
inexpensive determination of cases. The instant motion to strike has not been shown to
advance the case in any respect. Second, Rule 15(a)(2), while limiting the availability of
amendments procedurally, clearly signals that leave to amend should be freely given. It
would have been far better had plaintiffs discussed in advance with defendants the need
for some modifications to the proposed fourth amended complaint or, absent an
agreement, sought leave of court.

6

Moreover, plaintiffs’ filing of a modified fourth amended complaint in substance
side-stepped the procedures set out in Local Civil Rule 15.1(a).
Order – Motion to Strike Fourth Amended Complaint

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Technically, the fourth amended complaint as filed does not comport with the
court’s order authorizing a fourth amended complaint. But in furtherance of Rule 1, and
in exercise of the court’s case management authority under Rule 16, Federal Rules of
Civil Procedure, the court will overlook plaintiffs’ technical failure to adhere to
Rule 15(a)(2).
The motion to strike is denied.
DATED at Anchorage, Alaska, this 7th day of August, 2015.

/s/ H. Russel Holland
United States District Judge

Order – Motion to Strike Fourth Amended Complaint

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