Daniels et al v. Comunity Lending, Inc et al

Filing 89

ORDER: The Motion for Leave to File Third Amended Complaint is granted. (Doc. 86 ). Plaintiffs shall file a third amended complaint within twenty (20) days of the date this order is filed. Signed by Judge William Q. Hayes on 9/26/2014. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ELLINGTON DANIELS and DIANE
DANIELS,

CASE NO. 13cv488-WQH-JMA
ORDER

Plaintiffs,

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vs.
COMUNITY LENDING, INC.; NEW
CENTURY MORTGAGE; THE
BANK OF AMERICA HOME
LOANS; COUNTRYWIDE HOME
LOANS; BANK OF AMERICA, N.A.;
GINNIE MAE; THE BANK OF NEW
YORK; MORTGAGE ELECTRONIC
REGISTRATIONS SYSTEMS
(MERS); and RECONTRUST
COMPANY, N.A.,

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Defendants.

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19 HAYES, Judge:
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The matter before to Court is Plaintiff’s Motion for Leave to File Third Amended

21 Complaint (ECF No. 86).
22 I.

Background

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On February 28, 2013, Plaintiffs Initiated this action filing the Complaint. (ECF

24 No 1). On June 5, 2013, the Court issued an Order granting a motion to dismiss filed
25 by Defendants Bank of New York, Bank of America, N.A., Countrywide Home Loans,
26 Inc., ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc.
27 (ECF No. 30). On July 9, 2013, Plaintiffs filed a First Amended Complaint. (ECF No.
28 34). On August 12, 2013, the Court issued an Order granting a motion to dismiss filed
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13cv488-WQH-JMA

1 by Defendants Bank of New York, Bank of America, N.A., Countrywide Home Loans,
2 Inc., ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc.
3 (ECF No. 44).
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On May 14, 2014, Plaintiffs filed a Second Amended Complaint. (ECF No. 79).

5 On July 21, 2014, the Court issued an Order granting a motion to dismiss filed by
6 Defendants Bank of New York, Bank of America, N.A., Countrywide Home Loans,
7 Inc., ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc.,
8 and dismissing the Second Amended Complaint without prejudice as to those
9 Defendants. (ECF No. 82).
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On August 12, 2014, and August 26, 2014, Plaintiffs filed a proposed Third

11 Amended Complaint (ECF Nos. 84, 86).

On September 3, 2014, the moving

12 Defendants filed an opposition. (ECF No. 87). On September 5, Plaintiffs filed a reply.
13 (ECF No. 88).
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Contentions

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The moving Defendants contend that the proposed amendment is futile. Id. at 3.

16 The moving Defendants further contend that “[i]n previous Orders, the Court invited
17 Plaintiffs to file motions for leave to file an amended Complaint. In the latest order, the
18 Court dismissed the Complaint without prejudice. The Matter is closed and the lawsuit
19 dismissed.” Id.
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Plaintiffs contend that the Complaint was dismissed “‘without’ prejudice without

21 any loss or waiver of rights or privileges Id. at 4.
22 III.

Discussion

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A.

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Federal Rule of Civil Procedure 15 states, “A party may amend its pleading once

Motion for Leave to File Second Amended Complaint

25 as a matter of course...” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may
26 amend its pleading only with the opposing party’s consent or the courts leave.” Fed.
27 R. Civ. P. 15(a)(2). Federal Rule of Civil Procedure 15 mandates that leave to amend
28 “be freely given when justice so requires.” Fed. R. Civ. P. 15(a). “This policy is to be
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13cv488-WQH-JMA

1 applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
2 1048, 1051 (9th Cir. 2003) (quotation omitted). In determining whether to allow an
3 amendment, a court considers whether there is “undue delay,” “bad faith,” “undue
4 prejudice to the opposing party,” or “futility of amendment.” Foman v. Davis, 371 U.S.
5 178, 182 (1962). “Not all of the [Foman] factors merit equal weight.... [I]t is the
6 consideration of prejudice to the opposing party that carries the greatest weight.”
7 Eminence Capital, 316 F.3d at 1052 (citation omitted).

“The party opposing

8 amendment bears the burden of showing prejudice.” DCD Programs, Ltd. v. Leighton,
9 833 F.2d 183, 187 (9th Cir. 1987). “Absent prejudice, or a strong showing of any of the
10 remaining Foman factors, there exists a presumption under Rule 15(a) in favor of
11 granting leave to amend.” Eminence Capital, 316 F.3d at 1052.
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After review of the Motion for Leave to File Third Amended Complaint and the

13 filings of the parties, the Court concludes that the moving Defendants have not made
14 a sufficiently strong showing of the Foman factors to overcome the presumption under
15 Rule 15(a) in favor of granting leave to amend. See Eminence Capital, 316 F.3d at
16 1052. The Court will defer consideration of any challenge to the merits of the proposed
17 third amended complaint until after the amended pleading is filed. See Netbula v.
18 Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003) (“Ordinarily, courts will defer
19 consideration of challenges to the merits of a proposed amended pleading until after
20 leave to amend is granted and the amended pleading is filed.”). The Motion for Leave
21 to File Third Amended Complaint is granted.
22 III.

Conclusion

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IT IS HEREBY ORDERED that Motion for Leave to File Third Amended

24 Complaint is GRANTED. (ECF No. 86). Plaintiffs shall file a third amended
25 complaint within twenty (20) days of the date this order is filed.
26 DATED: September 26, 2014
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WILLIAM Q. HAYES
United States District Judge
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13cv488-WQH-JMA