Kouretas v. Nationstar Mortgage Holdings, Inc. et al

Filing 74

ORDER signed by Chief Judge Morrison C. England, Jr. on 3/12/2015 DENYING 68 Ex Parte Application. (Zignago, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JAMES KOURETAS,

12
13
14
15
16

No. 2:13-cv-02632-MCE-KJN

Plaintiff,
v.

ORDER

NATIONSTAR MORTGAGE, BANK OF
AMERICA, N.A., DOES 1-10,
Defendant.

17
18

Presently before the Court is Plaintiff James Kouretas’ (“Plaintiff”) Ex Parte

19

Application for Leave of Court to File an Amended Complaint Before the Motions to

20

Dismiss the Operative Complaint are Heard (“Ex Parte Application”). ECF No. 68. For

21

the following reasons, Plaintiff’s Ex Parte Application is DENIED. ECF No. 68.

22

On September 10, 2014, Plaintiff filed his operative Second Amended Complaint

23

(“SAC”), alleging three claims against Defendants Nationstar Mortgage Holdings, Inc.

24

(“Nationstar”) and Bank of America, N.A. (“BofA”) (collectively “Defendants”): (1)

25

promissory estoppel; (2) unfair competition; and (3) violation of the Racketeer Influenced

26

and Corrupt Organization Act (“RICO”). ECF No. 51. In February 2015, both

27

Defendants filed motions to dismiss the complaint for failure to state a claim pursuant to

28

Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 64 (BofA), 66 (Nationstar). The
1

1

hearing on the Defendants’ motions to dismiss is scheduled for April 2, 2015.

2

On March 1, 2015, Plaintiff filed the instant Ex Parte Application seeking leave to

3

amend his complaint based on new case law and arguing that a recently published case

4

opens the door to a negligence claim against Defendants. ECF No. 68 at 1-2.

5

Specifically, Plaintiff argues that after Alvarez v. BAC Home Loans Servicing, L.P., 228

6

Cal. App. 4th 941 (2014), California negligence law now recognizes a duty between a

7

bank lender and a homeowner/borrower under certain circumstances. Id. Defendants

8

both oppose Plaintiff’s Ex Parte Request.

9

To prevail on an ex parte application, Plaintiff must show that: (1) he is not the

10

cause of his own predicament; and (2) the order is “needed” to avoid some type of harm.

11

Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., No. 206-CV-02879-

12

GEB-KJM, 2007 WL 3340935, at *1 (E.D. Cal. Nov. 9, 2007) (citing Mission Power

13

Engineering Co. v. Continental Cas. Co., 883 F.Supp. 488, 492 (C.D.Cal. 1995)). “Ex

14

parte applications are not intended to save the day for parties who have failed to present

15

requests when they should have.” White v. Cinemark USA Inc., No. Civ.S 04 397 GEB

16

KJM, 2005 WL 3890635, at * 1 (E.D. Cal. Apr. 27, 2005) (quoting In re Intermagnetics

17

America, Inc., 101 B.R. 191, 193 (Bankr. C.D. Cal. 1989).

18

Here, Plaintiff’ fails to establish he is without fault in creating the need for the ex

19

parte relief. In his Ex Parte Application, Plaintiff cites the “newness” of the Alvarez

20

decision as the reason why his counsel was unaware of the decision and why he failed

21

to allege negligence in his SAC. This argument is unconvincing for two reasons. First,

22

Alvarez was decided on August 7, 2014, which was over a month prior to the filing of

23

Plaintiff’s operative SAC on September 10, 2014. See Alvarez, 228 Cal. App. 4th 941

24

(2014); ECF No. 51. A month would have been sufficient time for Plaintiff’s counsel to

25

have reviewed the current case law and alleged a negligence cause of action in the

26

SAC. Second, six months passed between the Alvarez decision and the filing of the

27

instant ex parte request. Therefore, even if negligence was not alleged in the SAC itself,

28

Plaintiff still had ample time to bring the decision to the Court’s attention through its
2

1

standard motion procedures. That Plaintiff and his counsel were “simply unaware of the

2

opinion” until recently does not change the fact that it was decided months ago.

3

Because Plaintiff is responsible for any harm that might result from failing to plead

4

negligence and failing to file a timely motion to amend, ex parte relief is not justified

5

here, and his Ex Parte Application (ECF No. 68) is DENIED.

6
7

IT IS SO ORDERED.
Dated: March 12, 2015

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3