Kimberly Cox v. Old Republic National Title Insurance Company, et al

Filing 41

ORDER REGARDING 40 FIRST AMENDED COMPLAINT; TERMINATING PENDING MOTIONS AS MOOT, re: 27 , 33 , 35 . Signed by Hon. Beth Labson Freeman on 8/5/2015. (blflc2, COURT STAFF) (Filed on 8/5/2015)

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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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KIMBERLY COX,

Case No. 15-cv-02253-BLF

Plaintiff,
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v.
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United States District Court
Northern District of California

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OLD REPUBLIC NATIONAL TITLE
INSURANCE COMPANY, et al.,
Defendants.

ORDER REGARDING FIRST
AMENDED COMPLAINT;
TERMINATING PENDING MOTIONS
AS MOOT
[Re: ECF 1, 27, 33, 35, 40]

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On August 3, 2015, plaintiff Kimberly Cox filed a First Amended Complaint (“FAC”) in

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this action. ECF 40. Federal Rule of Civil Procedure 15(a) provides in relevant part as follows:

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(1) Amending as a Matter of Course. A party may amend its
pleadings once as a matter of course within:

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(A) 21 days after serving it, or

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(B) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.

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Fed. R. Civ. P. 15(a)(1). Although the Ninth Circuit has not spoken directly on this issue, other

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courts have reasoned that in a case involving multiple defendants, a plaintiff may amend the

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complaint as a matter of course with regard to those defendants that have not yet answered or filed

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a Rule 12 motion. Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1291 (11th

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Cir. 2007); French v Farm Bureau Mutual Ins. Co. of Idaho, No. CV 07-15-MO, 2007 WL

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2011191, at *2 (D. Oregon July 6, 2007); Ramirez v. Silgan Containers, No. CIV F 07-0091 AWI,

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2007 WL 1241829, at *4 (E.D. Cal. Apr. 26, 2007). If the right to amend as a matter of course has

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been lost, a plaintiff must petition the court for leave to amend, which should be freely given

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“when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Here, all defendants have filed motions to dismiss the original complaint for failure to state
a claim: defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) filed its motion on

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June 26, 2015, ECF 27; defendants New Penn Financial, LLC, d/b/a Shellpoint Mortgage

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Servicing (“Shellpoint”) and The Bank of New York Mellon fka The Bank of New York as

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Trustee for The Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-02

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Mortgage Pass-Through Certificates, Series 2005-02 (“BONY”) filed their motion on July 20,

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2015, ECF 33; and defendant Old Republic Default Management Services (“Old Republic”) filed

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its motion on July 20, 2015, ECF 35. Plaintiff’s August 3 amendment to her pleadings is therefore

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a timely invocation of her right to amend as a matter of course with respect to Shellpoint, BONY,

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United States District Court
Northern District of California

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and Old Republic, but untimely as to MERS. Thus, while Plaintiff’s FAC moots the motions to

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dismiss filed by Shellpoint and BONY and Old Republic, it does not moot MERS’s motion.

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Nevertheless, the Court is left with the practical problem of “multiple versions of the

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complaint operative against different defendants.” Termini v. Frontier Commc’ns of America,

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Inc., No. CV 08-8042-PCT-JAT, 2008 WL 2783276, at *2 n.4 (D. Ariz. July 16, 2008). Under the

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present circumstances, the Court construes Plaintiff’s FAC as a request for leave to amend the

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complaint with respect to MERS. Leave to amend under Rule 15(a)(2) is granted with “extreme

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liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Given

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the early stage of this litigation, the Court does not detect any bad faith, undue delay, or unfair

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prejudice to MERS from allowing Plaintiff to amend. Foman v. Davis, 371 U.S. 178, 182 (1962).

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Plaintiff’s request to amend the complaint as to MERS is accordingly GRANTED, and the FAC

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shall be the operative complaint in this action with respect to all defendants. Accord Boyd v. Santa

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Cruz Cnty., No. 15-CV-00405-BLF, 2015 WL 3465837, at *4-5 (N.D. Cal. June 1, 2015). The

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three motions to dismiss filed by the defendants (ECF 27, 33, 35) are TERMINATED as moot.

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In granting leave to amend, the Court is not making any determination regarding the

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adequacy of Plaintiff’s FAC. The defendants retain their right to challenge any deficiencies in the

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FAC that were not addressed on amendment. Furthermore, in recognition of the fact that MERS’s

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fully briefed motion has been mooted by Plaintiff’s amendment, the Court will preserve the
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October 15, 2015 hearing date only as to MERS. Should MERS intend to file a Rule 12 motion in

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response to the FAC, it must do so within the time set forth in the Federal Rules of Civil

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Procedure and may notice the motion to be heard on October 15, 2015 at 9:00 a.m. before the

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undersigned.

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IT IS SO ORDERED.
Dated: August 5, 2015
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BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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