Becker v. Countrywide Home Loans, Inc. et al

Filing 72

ORDER signed by Magistrate Judge Kendall J. Newman on 8/28/2017 DENYING 64 & 67 Motion for Leave to amend his complaint construed as a motion to modify the scheduling order. The Proposed 65 Third Amended Complaint is STRICKEN. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNLY R. BECKER,

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Plaintiff,

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No. 2:15-cv-2240-MCE-KJN PS

v.

ORDER

BANK OF NEW YORK MELLON AS
TRUSTEE FOR THE BELLAVISTA
MORTGAGE TRUST 2004-2 &
NATIONSTAR MORTGAGE LLC,

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Defendants.

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Presently pending before the court is plaintiff’s motion for leave to file a third amended

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complaint. (ECF Nos. 64, 67.) Defendants have opposed the motion, and plaintiff filed a reply

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brief. (ECF Nos. 69, 71.) For the reasons discussed below, the court DENIES the motion.

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In support of his motion, plaintiff relies heavily on the liberal amendment policy of

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Federal Rule of Civil Procedure 15: “Under Rule 15(a), leave to amend should be granted as a

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matter of course, at least until the defendant files a responsive pleading. After that point, leave to

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amend should be granted unless amendment would cause prejudice to the opposing party, is

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sought in bad faith, is futile, or creates undue delay.” Johnson v. Mammoth Recreations, Inc.,

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975 F.2d 604, 607 (9th Cir. 1992).

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However, once the court has entered a scheduling order setting a deadline for amending

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pleadings, plaintiff’s ability to amend his complaint is governed by Rule 16(b), and not Rule

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15(a). Johnson, 975 F.2d at 607-08; see also Fed. R. Civ. P. 16(b)(4) (“A schedule may be

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modified only for good cause and with the judge’s consent.”). The propriety of amendment under

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Rule 15(a) will be considered only when good cause has been shown to modify the scheduling

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order pursuant to Rule 16(b). Johnson, 975 F.2d at 608. In this case, the court’s October 14,

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2016 scheduling order specifically provides, consistent with Rule 16(b), that “[n]o further joinder

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of parties or amendments to pleadings will be permitted except with leave of court, good cause

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having been shown.” (ECF No. 41 at 2.)

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Here, plaintiff has plainly not shown good cause for modifying the scheduling order.

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First, and most importantly, the common law negligence and California Unfair

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Competition Law claims he now seeks to add in the proposed third amended complaint (ECF No.

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65) have already been dismissed with prejudice over a year ago. (ECF Nos. 24, 28.) For the

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reasons discussed in detail in the court’s prior order (ECF No. 24 at 9-11), those claims are not

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legally viable, even if plaintiff alleged additional facts obtained in discovery in support of such

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claims. As such, leave to amend would be futile.

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Second, even if the proposed claims were not futile, the court would not find good cause

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to modify the schedule at this late juncture. Discovery in this action already closed on August 3,

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2017, and the law and motion completion deadline of September 28, 2017 is fast approaching.

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(ECF No. 41.) Allowing amendment at this time would no doubt necessitate the re-opening of

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discovery and delay the schedule of this case, which would be unjustified especially given that

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plaintiff’s motion to amend was filed a mere day before the close of discovery.

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Third, allowing the proposed amendment would be prejudicial to the defendants, who

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have litigated the case through the close of discovery on the reasonable presumption that only a

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claim for violation of California Civil Code section 2943 is at issue. Expanding the scope of the

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litigation at this time would require additional discovery, including potentially duplicative

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depositions, resulting in increased expenses, inefficiency, and wasted time and resources.

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Therefore, the court concludes that plaintiff has failed to show the requisite good cause to
modify the scheduling order to permit an amendment of his complaint.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to amend his complaint (ECF Nos. 64, 67), properly

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construed as a motion to modify the scheduling order, is DENIED.

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2. The proposed third amended complaint (ECF No. 65) is STRICKEN.

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IT IS SO ORDERED.

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Dated: August 28, 2017

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