Fevinger v. Bank of America , N.A.

Filing 62

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT AND DENYING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT by Judge Paul S. Grewal denying as moot 45 Motion to Dismiss; granting 47 Motion for Leave to File (psglc3S, COURT STAFF) (Filed on 6/6/2014)

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RACHEL FEVINGER,

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Plaintiff,
v.

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BANK OF AMERICA, N.A., and
US BANK, N.A. TRUSTEE,

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Defendants.

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Case No. 5:13-cv-04839-PSG
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
THIRD AMENDED COMPLAINT
AND DENYING DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED COMPLAINT
(Re: Docket Nos. 45, 47)

Before the court is Plaintiff Rachel Fevinger’s motion to file a third amended complaint. 1

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Defendants Bank of America, N.A. and US Bank N.A. trustee oppose. 2 Plaintiff replied to the

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opposition. 3 The matter was submitted without oral argument pursuant to Civ. L.R. 7-1(b).

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Having reviewed the papers, the court GRANTS Plaintiff’s motion for leave to amend.

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See Docket No. 47.

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See Docket No. 49.

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See Docket No. 60.

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Case No. 5:13-cv-04839-PSG
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED
COMPLAINT AND DENYING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED COMPLAINT

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The court construes Rule 15(a) liberally so that amendments shall be granted “freely . . .

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when justice so requires.” 4 If, however, amendment will prejudice the nonmoving party, is sought

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in bad faith, produces undue delay, or is futile, the court need not grant leave to amend. 5 Although

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Defendants here invoke those limitations to amendment, 6 and notwithstanding that Plaintiff has

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thrice attempted to formulate a proper complaint, 7 the court finds that the balance weighs in favor

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of granting her request due to the exigencies surrounding her husband’s medical circumstances. 8

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Plaintiff is nevertheless warned that any deficiencies in her complaint should be adequately

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remedied so that her claims will survive this fourth and likely final round of pleading.

United States District Court
For the Northern District of California

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Granting this motion renders Defendants’ motion to dismiss Plaintiff’s second amended

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complaint moot; the motion is therefore DENIED. 9 The parties shall follow an accelerated briefing

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schedule as follows: (i) Plaintiff shall file and serve her third amended complaint by June 13, 2014;

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(ii) any responsive pleadings or motions shall be due by June 20, 2014; (iii) any opposition by

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Plaintiff shall be due by June 27, 2014; (iv) on July 8, 2014, at 10:00 a.m., the parties shall appear

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for oral argument. No reply shall be considered. Any party wishing to appear by telephone may

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do so by reaching out to Mr. Oscar Rivera at [phone].

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IT IS SO ORDERED.

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Dated: June 6, 2014

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________________________________
PAUL S. GREWAL
United States Magistrate Judge

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See AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting
Fed. R. Civ. P. 15(a)).

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See id. (citing Bowels v. Reade, 198 F.3d 752, 757-58 (9th Cir. 2001)).

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Specifically, Defendants argue that amendment would prejudice them by increasing litigation
costs, unduly delay this matter’s disposition, and would be futile as Plaintiff’s proposed TAC
would not survive a 12(b)(6) motion. See Docket No. 49 at 8.
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See Docket Nos. 1, 14, 43.

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See Docket No. 47-2 at ¶ 11.

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See Docket Nos. 45, 52, 59.

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Case No. 5:13-cv-04839-PSG
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED
COMPLAINT AND DENYING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED COMPLAINT