Brooksbank v. Private Capital Group, LLC et al

Filing 45

ORDER by Magistrate Judge Howard R. Lloyd granting 40 Motion for Leave to File Amended Complaint; finding as moot 33 Motion to Dismiss (hrllc1, COURT STAFF) (Filed on 2/14/2014)

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*E-Filed: February 14, 2014*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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HEATHER BROOKSBANK,
Plaintiff,

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v.
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PRIVATE CAPITAL GROUP, LLC, ET
AL.,

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Defendants.
____________________________________/

No. C13-02667 HRL
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT AND
DENYING AS MOOT DEFENDANT’S
MOTION TO DISMISS
[Re: Docket Nos. 40, 33]

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Plaintiff Heather Brooksbank sues Defendant Private Capital Group (“PCG”) for breach of
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contract and fraud in connection with PCG’s foreclosure of Brooksbank’s home after allegedly
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reneging on the parties’ agreement to conduct a “short sale.” Brooksbank, acting pro se, filed a
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complaint in Santa Cruz Superior Court in May 2013. PCG removed the case to federal district
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court and filed a motion to dismiss, which was set for hearing before the undersigned in July. See
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Dkt. 6. However, Brooksbank declined to proceed before a magistrate judge, the case was
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reassigned to a district judge, and a hearing was set for December. Brooksbank opposed the motion
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in July before eventually retaining counsel in October. Shortly thereafter, the parties consented to
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having all matters proceed before a magistrate judge, the case was reassigned to the undersigned,
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and a hearing on the motion to dismiss was reset for January. See Dkt. 33. With the motion to
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dismiss pending, Brooksbank (now represented by counsel) moved for leave to file an amended
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complaint. See Dkt. 36. However, presumably because she failed to attach the proposed amended
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complaint, she withdrew that motion1 and filed a second motion to which she did attach the

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proposed amended complaint. See Dkts. 38, 40. PCG opposes the motion for leave to amend. See

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Dkt. 41. Pursuant to Civil L.R. 7(b), Defendant’s motion to dismiss was previously taken under

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submission without oral argument, and the hearing was vacated. Likewise, Brooksbank’s motion

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for leave to file an amended complaint is deemed suitable for determination without oral argument,

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and the hearing set for February 18, 2014, is vacated.2
“Four factors are commonly used to determine the propriety of a motion for leave to amend.

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These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment.”

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DCD Programs, Ltd. v. Leighton, 833 F.2d 183 (9th Cir. 1987). Brooksbank asserts that all four

For the Northern District of California

United States District Court

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factors weigh in favor of granting leave to amend. PCG addresses only the last factor, asserting that

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leave to amend would be futile because the proposed amended complaint still fails to state a claim

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for relief, essentially repeating the arguments set forth in the motion to dismiss. To find that

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amendment would be futile here would essentially be to determine a partially briefed motion to

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dismiss the amended complaint. The Court is reluctant to do so, however, because Brooksbank did

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not have the benefit of counsel in opposing the arguments the first time around, nor does she have a

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full and fair opportunity to respond to them now. Because the first three Leighton factors weigh in

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Brooksbank’s favor, and the Court does not definitively find that amendment would be futile,

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Brooksbank’s motion for leave to file the amended complaint is GRANTED. Accordingly,

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Defendant’s motion to dismiss the original complaint is DENIED as moot. Brooksbank shall file

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her attached proposed amended complaint forthwith, and in no case later than seven days from the

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date of this order. Upon filing, pursuant to Rule 15(a)(3), PCG will have 14 days to move to

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dismiss the amended complaint or otherwise respond.
IT IS SO ORDERED.

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Dated: February 14, 2014

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HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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As correctly noted in her Notice of Withdrawal, pursuant to Civil L.R. 7-7(e), Brooksbank did not
require leave of court to withdraw her motion. However, because her Notice of Withdrawal was efiled as a motion and set for hearing, the hearing was vacated and the “motion” is hereby terminated.
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PCG’s motion to appear by telephone at the hearing is terminated as moot.
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C13-02667 Notice will be electronically mailed to:

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Andrew Michael Oldham

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Avi Noam Phillips

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Magdalena Chattopadhya

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T. Robert Finlay

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

[e-mail]

[e-mail], [e-mail]
[e-mail]

[e-mail], [e-mail]

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For the Northern District of California

United States District Court

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