Monday v. Saxon Mortgage Services, Inc. et al

Filing 80

ORDER granting 68 Motion to Amend the Complaint signed by Judge William B. Shubb on 7/7/11: Plaintiff is ordered to file her Second Amended Complaint within ten days of the date of this Order. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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HENRIETTA J. MONDAY, an
Individual,

NO. CIV. 2:10-989 WBS CMK

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Plaintiff,

ORDER RE: MOTION TO AMEND

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v.
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SAXON MORTGAGE SERVICES, INC,
a Texas Corporation; OCWEN
LOAN SERVICING, LLC, a
Delaware Limited Liability
Company; U.S. BANK, N.A., AS
TRUSTEE FOR THE REGISTERED
HOLDERS OF ABFC 2007-WMC1
TRUST ASSET BACKED FUNDING
CORPORATION ASSET BACKED
CERTIFICATED, SERIES 2007WMC1, an Ohio Business Entity;
T.D. SERVICE COMPANY, a
California Corporation; and
DOES 1 through 10, Inclusive,

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Defendants.

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/
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----oo0oo----

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Presently before the court is plaintiff Henrietta J.

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Monday’s motion for leave to amend her First Amended Complaint

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pursuant to Federal Rule of Civil Procedure 15(a)(2).
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Plaintiff

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wishes to amend her complaint to include new facts uncovered

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during discovery and to allege new causes of action based on

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those facts.

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Because plaintiff moves for leave to amend after the

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court has issued its Status (Pretrial Scheduling) Order and the

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deadline for amendment of pleadings has expired, a two-step

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analysis applies.

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604, 607-08 (9th Cir. 1992).

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“good cause” for seeking amendment and modification of the

Johnson v. Mammoth Recreations, Inc., 975 F.2d
Plaintiff must first demonstrate

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scheduling order under Rule 16(b).

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is shown, the court must then evaluate the motion for leave to

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amend under Rule 15(a).

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Id. at 607-08.

If good cause

Id. at 608.

Whether good cause exists depends heavily on the degree

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of diligence exercised by the movant in its attempt to comply

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with the deadlines set forth in the court’s scheduling order.

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Johnson, 975 F.2d at 609; Matrix Motor Co., Inc. v. Toyota

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Jidosha Kabushiki Kaisha, 218 F.R.D. 667, 671 (C.D. Cal. 2003).

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Because plaintiff moves to amend her complaint based on facts

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uncovered during discovery, the court finds that plaintiff has

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good cause to seek leave to amend.

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exercised a greater degree of diligence in order to amend at an

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earlier stage in litigation.

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Plaintiff could not have

Under Rule 15(a), there exists a presumption in favor

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of granting leave to amend.

Eminence Capital, LLC v. Aspeon,

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Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); see Fed R. Civ. P.

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15(a)(2) (“The court should freely give leave [to amend] when

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justice so requires.”).

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denied only upon showing of bad faith, undue delay, futility, or

Leave to amend “generally shall be

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undue prejudice to the opposing party.”

Chudacoff v. Univ. Med.

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Ctr. of S. Nev., --- F.3d ----, ----, 2011 WL 2276774, at *6 (9th

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Cir. 2011) (citing Foman v. Davis, 371 U.S. 178 (1962)).

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to grant or deny leave to amend is within the discretion of the

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district court.

Whether

Foman, 371 U.S. at 182.

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Because the court finds no prejudice, undue delay or

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bad faith, the court will not deny plaintiff’s motion on those

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grounds.

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realleges claims which this court has previously dismissed and

Defendant argues that the First Amended Complaint

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contains new claims upon which relief cannot be granted.

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arguments are better addressed in a motion to dismiss under Rule

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12(b)(6) after the amended complaint is filed.

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not deny plaintiff’s motion for leave to amend based on futility

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alone.

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CV-F-05-1411 OWW GSA, 2010 WL 596312, at *14 (E.D. Cal. Feb. 16,

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2010) (“[D]enial on [the ground of futility] is rare and courts

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generally defer consideration of challenges to the merits of a

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proposed amended pleading until after leave to amend is granted

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and the amended pleading is filed.”).

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Those

The court need

Duhn Oil Tool, Inc. v. Cooper Cameron Corp., No.

IT IS THEREFORE ORDERED that plaintiff’s motion for

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leave to amend her First Amended Complaint be, and the same

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hereby is, GRANTED.

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Amended Complaint within ten days of the date of this Order.

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DATED:

Plaintiff is ordered to file her Second

July 7, 2011

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