Yarger et al v. ING Bank fsb
MEMORANDUM ORDER GRANTING 148 MOTION for Leave to File an Amended Answer filed by ING Bank fsb; DENYING as moot 160 MOTION for Leave to File Sur-Reply filed by Trude Yarger, Johnathan Yarger. Signed by Judge Leonard P. Stark on 8/28/13. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHNATHAN and TRUDE YARGER,
and a Class of similarly situated persons,
C.A. No. 11-154-LPS
lNG BANK, FSB D/B/A ING DIRECT,
Pending before the Court is Defendant ING Bank, fsb's ("ING" or "Defendant") Motion
for Leave to File an Amended Answer (D.I. 148) and Plaintiffs Johnathan and Trude Yarger's
("Plaintiffs") Motion for Leave to File Sur-Reply to Defendant's Reply in Support of its Motion
for Leave to File an Amended Answer (D.I. 160). For the reasons discussed below, the Court
will GRANTING's motion and DENY AS MOOT Plaintiffs' motion.
On January 21, 2011, Plaintiffs filed their initial complaint in the Superior Court
of the State of Delaware for the County of New Castle, and on February 18, 2011, ING removed
the action to this Court. (D .I. 1) On December 8, 2011, the parties stipulated to Plaintiffs filing
an Amended Class Complaint. (D.I. 35; D.I. 36) ING filed its Answer to the Amended
Complaint on January 9, 2012. (D.I. 39) On August 27, 2012, the Court granted in part
Plaintiffs' motion for class certification. (D .I. 115; D .I. 116)
On February 26, 2013, ING sought Plaintiffs' consent to file an amended answer
to add the affirmative defense of preemption of state law claims by the Home Owners' Loan Act
of 1933, 12 U.S.C. § 1461, et seq., and the implementation ofthe regulations ofthe Office of
Thrift Supervision, 12 C.F.R. § 560.2. (D.I. 149 Ex. A at 1) Plaintiffs stated that they would
agree to an amendment so long as ING understood Plaintiffs' intent to preserve arguments in
response to the preemption defense. (/d. at 2) After exchanging several emails in an attempt to
reach an agreement, Plaintiffs proposed an alternate solution whereby the parties would ask the
Court to address the preemption defenses through an early summary judgment motion. (/d. at
14) ING refused the proposal and instead filed the present motion on March 12, 2013. (D.I. 148)
Pursuant to Rule 15(a)(2) ofthe Federal Rules of Civil Procedure, a party may
amend its pleading "only with the opposing party's written consent or the court's leave," and
"[t]he court should freely give leave when justice so requires." The decision to grant or deny
leave to amend lies within the discretion of the court. See Foman v. Davis, 371 U.S. 178, 182
(1962); In re Burlington Coat Factory Sees. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). The
Third Circuit has adopted a liberal approach to pleading amendments. See Dole v. Arco, 921
F.2d 484, 486-87 (3d Cir. 1990). In the absence of undue delay, bad faith, or dilatory motives on
the part of the moving party, amendment should be freely granted, unless it would be futile or
unfairly prejudicial to the non-moving party. See Foman, 371 U.S. at 182; In re Burlington, 114
F.3d at 1434.
Plaintiffs do not oppose ING's motion to amend to add its preemption defense.
(D.I. 153 at 4) Plaintiffs only seek to preserve their right to argue, at the appropriate time, that
ING waived such a defense. (!d.) Thus, ING's motion to amend under Rule 15(a) is essentially
unopposed, and the Court will grantING's motion for leave. The only question that remains is
whether the Court must reach the issue of waiver at this time.
The Court will not address the issue of waiver at this stage ofthe proceedings.
Generally, "[i]ssues of waiver involve factual questions concerning the parties' intent, and
therefore, ... this issue [is not] suited for disposition in the context of a Rule IS(a) Motion." St.
Clair Intellectual Prop. Consultants, Inc. v. Fujijilm Holdings Corp., 2009 WL 1649769, at *2
(D. Del. June 10, 2009). Plaintiffs' waiver argument involves factual matters and, therefore, the
Court will decline to rule on it at this time. The Court emphasizes that it has not reached any
conclusions with respect to waiver or preemption.
Accordingly, IT IS HEREBY ORDERED that ING's Motion for Leave to File an
Amended Answer (D.I. 148) is GRANTED and Plaintiffs' Motion for Leave to File a Sur-Reply
(D.I. 160) is DENIED AS MOOT.
August 28, 2013
TATES DISTRICT JUDGE
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