Flagstar Bank, FSB v. The Loan Experts Corporation et al

Filing 221

ORDER by Judge Charles R. Breyer denying 215 Motion for Leave to File. (crblc1, COURT STAFF) (Filed on 10/10/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 10-03190 CRB

FLAGSTAR BANK,

ORDER DENYING MOTION FOR
LEAVE TO AMEND CROSS-CLAIM

Plaintiff,
v.

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LOAN EXPERTS, et al.,

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Defendants.

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On August 27, 2010, The Loan Experts filed a Cross-Claim against Stewart Title.

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See dkt. 56. On July 9, 2012, Stewart Title moved for summary judgment on the Cross-

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Claim. See dkt. 166. The Court held a hearing on that Motion on September 28, 2012,

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see dkt. 214, and filed an Order granting the Motion as well as a Judgment in Stewart Title’s

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favor on October 10, 2012, see dkts. 218, 219.
In between the hearing and when the Court filed its Order and Judgment, The Loan

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Experts filed a Motion for Leave to Amend the Cross-Claim, see dkt. 215, as well as a letter

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asking the Court to consider the Motion “as part of the Court’s ongoing consideration of

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Stewart Title’s Summary Judgment motion,” see dkt. 216 at 2. The Court also received a

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letter from counsel for Stewart Title, objecting to the letter and “untimely motion.” See dkt.

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217.

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The Federal Rules of Civil Procedure provide that a court should freely give leave to

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amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court nevertheless has

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discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the

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part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

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undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility

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of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008)

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(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

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The Court finds that The Loan Experts unduly delayed in bringing its Motion, and that

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allowing amendment at this point would unduly prejudice Stewart Title. Of course, it makes

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sense that a party would seek to amend its pleading to include additional bases for recovery

United States District Court
For the Northern District of California

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after sitting in a summary judgment hearing and learning of the Court’s “tentative

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conclusions” in favor of the other side. See dkt. 215 at 1. But allowing such amendment

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would be highly unfair to the other side, which in this case litigated for two years (and

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briefed and argued a motion for summary judgment) based on the original pleading. Justice

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does not require that The Loan Experts be allowed to amend. Especially as the Court has

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now granted summary judgment for Stewart Title, the time for amendment has passed. The

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Motion for Leave to Amend is therefore DENIED.

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IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: October 10, 2012

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G:\CRBALL\2010\3190\order denying amend.wpd

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