Becker v. Wells Fargo Bank, N.A., Inc.

Filing 69

ORDER ADOPTING in part and MODIFYING in part 64 FINDINGS AND RECOMMENDATIONS signed by Judge Kimberly J. Mueller on 3/30/13. The 39 Motion to Dismiss is GRANTED; plaintiff is given leave to amend Claim One, Claim Three, Claim Eleven, and Claim Twelve; all other claims are DISMISSED with prejudice. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNLY BECKER,
Plaintiff,

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No. 2:12-cv-0501 KJM CKD PS

vs.
WELLS FARGO BANK, N.A., INC.,

ORDER

Defendant.
/
Plaintiff filed the above-entitled action. The matter was referred to a United
States Magistrate Judge under Local Rule 302(c).
On January 23, 2013, the magistrate judge filed findings and recommendations,

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which were served on the parties and which contained notice to the parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Objections to the

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findings and recommendations have been filed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court adopts the findings and recommendations in part and modifies them in part.

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Specifically, the court adopts the magistrate’s recommendation that plaintiff’s complaint be

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dismissed, but the court finds plaintiff should be given leave to amend several claims.
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Federal Rule of Civil Procedure 15(a)(2) states “[t]he court should freely give

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leave [to amend pleadings] when justice so requires” and the Ninth Circuit has “stressed Rule

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15’s policy of favoring amendments.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149,

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1160 (9th Cir. 1989). “In exercising its discretion [to grant or deny leave to

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amend] ‘a court must be guided by the underlying purpose of Rule 15 — to facilitate decision on

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the merits rather than on the pleadings or technicalities.’” DCD Programs, Ltd. v. Leighton, 833

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F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir.

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1981)). However, “the liberality in granting leave to amend is subject to several limitations.

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Leave need not be granted where the amendment of the complaint would cause the opposing

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party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue

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delay.” Ascon Properties, 866 F.2d at 1160 (internal citations omitted). In addition, a court

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should look to whether the plaintiff has previously amended the complaint, as “the district

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court’s discretion is especially broad ‘where the court has already given a plaintiff one or more

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opportunities to amend [its] complaint.’” Id. at 1161 (quoting Leighton, 833 F.2d at 186 n.3).

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Plaintiff has not yet been given an opportunity to amend. On the record before

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the court, including the contents of plaintiff’s objections, the court cannot conclude it would be

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futile to permit plaintiff to amend his fraud claims, if he is able to do so while complying in full

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with Federal Rule of Civil Procedure 11 and the standards for fraud pleadings set forth in the

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findings and recommendations. Accordingly, plaintiff’s Elder Abuse Act and California Unfair

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Competition Law claims, as they are premised upon the fraud claims, also are dismissed with

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leave to amend. The court adopts in full the magistrate judge’s recommendation on the balance

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of plaintiff’s claims and dismisses them with prejudice.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 23, 2013 are adopted in part

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and modified in part;
2. Defendant’s motion to dismiss (dkt. no. 39) is granted;
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3. Plaintiff is given leave to amend the following claims: fraud (claim one), false

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promise (claim three), Elder Abuse Act (claim eleven), and Unfair Competition Law (claim

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twelve); and

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4. The rest of plaintiff’s claims are dismissed with prejudice.
DATED: March 30, 2013.

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UNITED STATES DISTRICT JUDGE

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