Campos, et al v. Federal Home Loan Services Corp., et al

Filing 35

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/15/13: Plaintiffs' October 1, 2013 motion to amend their complaint 33 is granted. This action will proceed on plaintiffs' first amended complaint 33 . Defendants' motions to dismiss 23 , 30 , are denied as moot and the October 30, 2013 hearing thereon is vacated. Defendants shall file a response to plaintiff's amended complaint within the time prescribed in the Federal Rules of Civil Procedure. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IGNACIO CAMPOS,
RAQUEL CAMPOS,
Plaintiffs,

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No. 2:13-cv-494-MCE-EFB PS

ORDER
v.
FEDERAL HOME LOAN SERVICES
CORP; QUALITY HOME LOAN
SERVICES; and DOES 1-100, inclusive,
Defendants.

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Presently set for hearing on October 30, 2013, are defendants’ motions to dismiss the

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complaint. ECF Nos. 23, 30. On October 1, 2013, plaintiffs filed a first amended complaint,

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which asserts additional claims against defendants. ECF No. 33. The court construes the first

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amended complaint as a motion for leave to file an amended complaint.

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Defendants moved to dismiss more than 21 days before plaintiffs filed their first amended

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complaint. Therefore, plaintiffs are not entitled to amend their complaint “as a matter of course”

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under Federal Rule of Civil Procedure 15(a)(1). Accordingly, the court must look to Rule

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15(a)(2), which provides that “[i]n all other cases, a party may amend its pleading only with the

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opposing party’s written consent or the court’s leave. The court should freely give leave when

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justice so requires.” Fed. R. Civ. P. 15(a)(2). The policy of freely granting leave to amend
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should be applied with “extreme liberality.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186

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(9th Cir. 1987). When determining whether to grant leave to amend under Rule 15(a), a court

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should consider the following factors: (1) undue delay; (2) bad faith; (3) futility of amendment;

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and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). The Ninth

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Circuit has instructed that “the crucial factor is the resulting prejudice to the opposing party,” and

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the burden of showing that prejudice is on the party opposing amendment. Howey v. United

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States, 481 F.2d 1187, 1190 (9th Cir. 1973); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1052 (9th Cir. 2003); DCD Programs, 833 F.2d at 187. Granting or denying leave to

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amend rests in the sound discretion of the trial court, and will be reversed only for abuse of

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discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).

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Here, there is no indication that plaintiffs, who are appearing pro se, unduly delayed in

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requesting leave to file an amended complaint or that their request was filed in bad faith. Further,

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the court cannot say at this time that the amendment would be futile. Additionally, although

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defendants have already filed motions to dismiss, if plaintiffs’ amended complaint suffers from

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the same failures that defendants contend the original complaint does, defendants can renew their

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motion to dismiss the amended complaint on similar grounds. Therefore, defendants have

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completed little work that would be disturbed by granting plaintiff leave to file an amended

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complaint. The burden of showing prejudice is upon the party opposing the amendment and

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defendants cannot carry this burden. Accordingly, plaintiff will be granted an opportunity to file

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a third amended complaint. See Duong-Tran v. Kaiser Found. Health Plan of the N.W., 2008 WL

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1909221, at *4-5 (D. Or. Apr. 28, 2008).

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As a result, the pending motions to dismiss, ECF. Nos. 23, 30, will be denied as moot.

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Plaintiffs’ first amended complaint will supersede the original complaint, which defendants’

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motions seeks to dismiss, rendering the original complaint of no legal effect and the motions to

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dismiss moot. See Ramirez v. Silgan Containers, 2007 WL 1241829, at *6 (Apr. 26, 2007).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiffs’ October 1, 2013 motion to amend their complaint, ECF No. 33, is granted.

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2. This action will proceed on plaintiffs’ first amended complaint, ECF No. 33.

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3. Defendants’ motions to dismiss, ECF Nos. 23, 30, are denied as moot and the October

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30, 2013 hearing thereon is vacated.
4. Defendants shall file a response to plaintiff’s amended complaint within the time

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prescribed in the Federal Rules of Civil Procedure.

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DATED: October 15, 2013.

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