Briggs et al v. Deutsche Bank National Trust Company et al
ORDER granting 29 Plaintiffs' Motion for Leave to File First Amended Complaint. 11 Motion to Dismiss and 22 Motion to Dismiss are denied as moot. By Magistrate Judge Kristen L. Mix on 2/13/2014.(klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02433-MSK-KLM
VALORIE BRIGGS, and
JOHN A. DAVIS,
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee,
FREEDOM MORTGAGE CORPORATION,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
LITTON LOAN SERVICES, LLC,
OCWEN LOAN SERVICING, LLC,
HELLERSTEIN AND SHORE, PC,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Motion for Leave to File First
Amended Complaint [#29]1 (the “Motion”). On December 12, 2013, Defendant Freedom
Mortgage Corporation filed its Notice of Non-Opposition to the Motion [#38]. On December
16, 2013, Defendants Deutsche Bank National Trust Company; Mortgage Electronic
Registration Systems, Inc.; Ocwen Loan Servicing, LLC; and Litton Loan Services, LLC
(collectively, the “Responding Defendants”) filed a Response [#39]. Defendant Hellerstein
and Shore, PC, has not filed a Response and its time to do so has elapsed. Plaintiffs have
“[#29]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Order.
not filed a Reply and their time to do so has elapsed. Pursuant to 28 U.S.C. § 636 (b)(1)
and D.C.COLO.LCivR 72.1C, the Motion has been referred to this Court for disposition
[#33]. The Court has reviewed the Motion, the Response, the entire docket, and the
applicable law, and is sufficiently advised in the premises. For the reasons set forth below,
the Court GRANTS the Motion [#29].
This case was filed by Plaintiffs, who proceed in this matter pro se, relating to a
foreclosure on real property located at 3656 South Cathay Circle in Aurora, Colorado.
Compl. [#1] at ¶ 2. In the proposed Amended Complaint [#29-1], Plaintiffs eliminate
Defendants Freedom Mortgage Corporation; Litton Loan Servicing, LP; and Ocwen Loan
Servicing, LLC. Compare Compl. [#1] at 1 with proposed Amended Complaint [#29-1] at
1. Plaintiffs add one new defendant, David A. Shore, in his individual and corporate
capacities. Id. Plaintiffs also clarify their claims, eliminate certain causes of action, and
add new causes of action, bringing their 47 page Complaint down to 19 pages and
asserting only six causes of action, three of which are brought under the Fair Debt
Collection Practices Act. See proposed Am. Compl. [#29-1] ¶¶ 6-51.
Here, Responding Defendants argue that Plaintiffs’ amendments are futile.
Response [#56] at 4-7. Responding Defendants also maintain that the Motion should be
denied because “Plaintiffs’ motion for leave to amend contains no explanation as to why
[P]laintiffs waited until after the [D]efendants filed their motion to dismiss to seek
amendment and fails to demonstrate that the proposed amendment would cure the
deficiencies in the operative complaint. Id. at 7. The latter argument is grounded in the
idea that Plaintiffs unduly delayed amending their claims. See id. at 8.
As a preliminary matter, a Scheduling Conference has not yet been held, and thus
Plaintiffs’ request to amend the Complaint is timely. The Court therefore considers any
arguments raised by the parties related to whether justice would be served by amendment.
Specifically, the Court should grant leave to amend “freely . . . when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Leave should generally be permitted unless the moving
party unduly delayed or failed to cure, the opposing party would be unduly prejudiced, or
the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). The
United States Supreme Court has made clear that “the grant or denial of an opportunity to
amend is within the discretion of the District Court, but outright refusal to grant the leave
without any justifying reason appearing for the denial is not an exercise of discretion; it is
merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Id.
at 182; see also Triplett v. LeFlore County, Okl., 712 F.2d 444, 446 (10th Cir. 1983).
Further, prejudice to the opposing party is the single most important factor in deciding
whether to allow leave to amend. Minter v. Prime Equipment Co., 451 F.3d 1196, 1207
(10th Cir. 2006).
Responding Defendants argue that “[f]ailure to seek amendment as a matter of right
is sufficient cause for denying leave, especially when the movant offers no adequate
explanation for the delay.” Response [#39] at 8. However, the case they cite for this
proposition does not support this argument. See Frank v. U.S. West, Inc., 3 F.3d 1357,
1365 (10th Cir. Aug. 24, 1993) (finding that district court did not abuse its discretion in
denying stipulated motion to add one party and drop another when the stipulation also
contained an agreement that the court had diversity jurisdiction over state law claims).
Further, delay alone is an insufficient ground to deny leave to amend. Minter, 451 F.3d at
The Court may deny a motion to amend based on undue delay. Minter, 451 F.3d
at 1205. The Court notes that the case was initiated on September 6, 2013. See generally
Compl. [#1]. In lieu of answering, Defendants filed motions to dismiss [##10, 11, 22]. On
November 22, 2013, Plaintiffs filed the instant Motion. Delay is “undue” only if it will place
an unwarranted burden on the Court or become prejudicial to the opposing party. Id. The
Tenth Circuit “focuses primarily on the reason for the delay.” Id. A motion to amend is
untimely if, among other reasons, the moving party has made the complaint a “moving
target,” is trying to “salvage a lost case by untimely suggesting new theories of recovery,”
is trying to present more theories to avoid dismissal, or is knowingly waiting until the eve
of trial to assert new claims. Id. at 1206 (citations omitted). Other common reasons for
finding undue delay include lack of adequate explanation for the delay or when a moving
party knows or should have known of the facts in the proposed amendment but did not
include them in the original complaint or any prior attempts to amend. Id. (citations
Responding Defendants are correct that the Court may deny leave to amend if the
movant “knows or should have known of the facts upon which the proposed amendment
is based but fails to include them in the original complaint.” Response [#39] at 8 (quoting
Pallottino v. City of Rio Rancho, 31 F.3d at 1027). However, they ignore that fact that “[t]he
Federal Rules reject the approach that pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the principle that the purpose of
pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41,
48 (1957). Here, pro se Plaintiffs are asking the Court to accept a proposed Amended
Complaint that streamlines their factual allegations and focuses their legal claims, in the
process eliminating 28 pages from their Complaint and bringing the number of claims
asserted from nine to six, three of which are now asserted under the same statute. In such
a case, the Court does not find that Plaintiffs’ Motion was unduly delayed.
The Court next addresses Responding Defendants’ futility argument.
amendment is futile if it would not survive a motion to dismiss. Innovatier, Inc. v. CardXX,
Inc., No. 08-cv-00273-PAB-KLM, 2010 WL 148285, at *2 (D. Colo. Jan. 8, 2010) (citing
Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). However, the Court notes that
this case is still in its earliest stages. Plaintiffs have neither filed an amended complaint as
a matter of course nor previously sought leave to amend their Complaint. No ruling on the
merits has issued on any dispositive motion. A Scheduling Conference has not yet been
held and discovery has not commenced. At this stage of the proceedings, the Tenth Circuit
has expressed that, “the preferred practice is to accord a plaintiff notice and an opportunity
to amend his complaint before acting upon a motion to dismiss for failure to state a claim[.]”
McKinney v. Okla., 925 F.2d 363, 365 (10th Cir. 1991). In the circumstances at hand,
therefore, the Court will not deny leave to amend on the basis of futility. Thus, the Court
permits Plaintiffs leave to file their proposed Amended Complaint. See, e.g., Stender v.
Cardwell, No. 07-cv-02503-WJM-MJW, 2011 WL 1235414, at *3 (D. Colo. April 1, 2011);
American Web, Inc. v. Flom Corp., No. 11-cv-02444-WYD-KMT, 2012 WL 1470141, at *2
(D. Colo. April 27, 2012); Starr v. City of Lakewood, No. 08-cv-01390-WYD-KLM, 2008 WL
5246158, at *1 (D. Colo. Dec. 16, 2008).
Based on the above,
IT IS HEREBY ORDERED that the Motion to Amend [#29] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiff’s
Amended Complaint [#29-1] for filing as of the date of this Order.
IT IS FURTHER ORDERED that Defendants Deutsche Bank National Trust
Company; Mortgage Electronic Registration Systems, Inc.; and Hellerstein and Shore, PC
shall answer or otherwise respond to the Amended Complaint within the time allowed
pursuant to Fed. R. Civ. P. 15(a)(3).
IT IS FURTHER ORDERED that Plaintiffs shall serve the newly named Defendant,
David A. Shore, with the Amended Complaint in accordance with the Federal Rules of Civil
IT IS FURTHER ORDERED that Defendant Hellerstein and Shore, P.C.’s Motion to
Dismiss Complaint Seeking Damages and Equitable Relief Including Petition for a
Temporary Restraining Order to Estop Defendants From Selling, Transferring, Foreclosing
and/or Otherwise Taking Plaintiff’s Real Property Under 11 U.S.C. § 323 and Federal Rules
of Civil Procedures 8, 12(b)(1) & (6) and 17(a)(1) [#11] and Defendants Deutsche Bank
National Trust Company, as Trustee, Mortgage Electronic Registration Systems, Inc.,
Ocwen Loan Servicing, LLC, and Litton Loan Servicing, LP’s, Motion to Dismiss Plaintiffs’
Complaint for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6) [#22] are
DENIED as moot.2 See, e.g., Strich v. United States, No. 09-cv-01913-REB-KLM, 2010
WL 14826, at *1 (D. Colo. Jan. 11, 2010) (citations omitted) (“The filing of an amended
complaint moots a motion to dismiss directed at the complaint that is supplanted and
superseded.”); Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006)
(noting that defendants’ motions to dismiss are “technically moot because they are directed
at a pleading that is no longer operative”).
Dated February 13, 2014
The Court has already recommended that Defendant Freedom Mortgage Corporation’s
Motion to Dismiss [#10] be denied as moot. Defendant Freedom Mortgage Corporation filed an
objection [#48] to that Recommendation which is pending before the Court.
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