Bald et al v. Wells Fargo Bank, N.A. et al
ORDER Granting Plaintiffs' Motion for Leave to File First Amended Complaint. "The Court HEREBY GRANTS Plaintiffs 92 Motion for Leave to File First Amended Complaint, filed October 20, 2017. Plaintiffs shall file their First Amended Compl aint by November 27, 2017." Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 11/20/17. (cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DAVID EMORY BALD, ET AL.,
WELLS FARGO BANK, N.A., ET
CIVIL NO. 13-00135 SOM-KSC
ORDER GRANTING PLAINTIFFS’
MOTION FOR LEAVE TO FILE FIRST
ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE
TO FILE FIRST AMENDED COMPLAINT
Before the Court is Plaintiffs’ Motion for Leave to
File First Amended Complaint, filed October 20, 2017.
matter came on for hearing on November 20, 2017.
Bickerton, Esq., John Perkins, Esq., and Bridget Morgan, Esq.,
appeared on behalf of Plaintiffs.
Blaine Rogers, Esq.,
appeared on behalf of Defendant Wells Fargo Bank, N.A.
careful consideration of the parties’ submissions, the
applicable law, and the arguments of counsel, the Court HEREBY
GRANTS the Motion for the reasons set forth below.
Plaintiffs commenced this action on September 7,
2012, in the Circuit Court of the First Circuit, State of
On March 20, 2013, Defendant filed a Notice of
Shortly after removal, Defendants filed motions to
On July 25, 2013, then Chief U.S. District Judge
Susan Oki Mollway issued an Order Granting Defendant’s Motion
Plaintiffs filed an appeal.
On April 24, 2017, the Ninth Circuit reversed the
dismissal order and remanded the case for further proceedings.
On May 23, 2017, the first Rule 16 Scheduling Order
Plaintiffs seek to file a First Amended Complaint
(“FAC”) to add additional plaintiffs to represent the putative
class; add additional subclasses; add factual allegations in
support of the claims alleged; and remove/modify certain
allegations in light of the dismissal of Defendants The Law
Office of David B. Rosen and David B. Rosen.
Defendant opposes the requested amendments on
grounds of prejudice, undue delay, and futility.
contends that Plaintiffs should not be permitted to add new
claims guised as subclasses or allegations concerning a
consent order or consent judgment because the information
underlying those claims and allegations were available at the
In the interim, Plaintiffs dismissed David Rosen, who
had been sued in his professional and personal capacities.
His motion to dismiss was therefore denied as moot.
time the action was filed.
Defendant also argues that the
voluminuous discovery necessitated by the proposed amendments,
coupled with the passage of time, would be prejudicial.
Finally, Defendant submits that the proposed subclass
amendments are barred by the statute of limitations.
Rule 15(a)(1) of the Federal Rules of Civil
Procedure (“FRCP”) provides:
A party may amend its pleading once as a matter
of course within:
(A) 21 days after serving it, or
(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.
Fed. R. Civ. P. 15(a)(1).
“In all other cases, a party may
amend its pleading only with the opposing party’s written
consent or the court’s leave.
The court should freely give
leave when justice so requires.”
Fed. R. Civ. P. 15(a)(2).
“This policy is ‘to be applied with extreme liberality.’”
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051
(9th Cir. 2003) (citations omitted).
whether a party should be allowed to amend a pleading is left
to the discretion of the court.
Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 330 (1971) (citation
If the facts or circumstances a plaintiff relies
upon may be the basis of relief, she should be afforded an
opportunity to test her claim on the merits.
371 U.S. 178, 182 (1962).
Foman v. Davis,
Furthermore, in exercising its
discretion to grant leave to amend, a court “‘should be guided
by the underlying purpose of Rule 15(a) . . . which was to
facilitate decisions on the merits, rather than on
technicalities or pleadings.’”
In re Morris, 363 F.3d 891,
894 (9th Cir. 2004) (quoting James v. Pliler, 269 F.3d 1124,
1126 (9th Cir. 2001)) (alteration in original).
Courts may consider factors such as:
bad faith or
dilatory motive on the movant’s part; whether the amendment
will cause undue delay; whether it will prejudice the opposing
party; futility of the amendment; and whether the movant has
already failed to cure deficiencies in prior amendments of her
Foman, 371 U.S. at 182; Morris, 363 F.3d at 894
Not all of these factors carry equal
weight; prejudice to the opposing party is the most persuasive
Eminence, 316 F.3d at 1052 (citation omitted).
party opposing the motion for leave to amend bears the burden
of establishing prejudice.
DCD Programs, Ltd. v. Leighton,
833 F.2d 183, 187 (9th Cir. 1987) (citing Beeck v. Aqua-slide
‘N’ Dive Corp., 562 F.2d 537, 540 (8th Cir. 1977)).
is neither prejudice to the opposing party nor a strong
showing of the remaining factors, there is a presumption in
favor of granting leave to amend.
Eminence, 316 F.3d at 1052
(citing Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 245 (5th
“Futility of amendment can, by itself, justify the
denial of a motion for leave to amend.”
F.3d 815, 845 (9th Cir. 1995).
Bonin v. Calderon, 59
An amendment is futile when
“no set of facts can be proved under the amendment to the
pleadings that would constitute a valid and sufficient claim
Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214
(9th Cir. 1988) (citation omitted).
Given the extreme liberality with which the Court
must apply the policy that leave to amend be freely given, the
Court GRANTS the Motion and shall allow Plaintiffs to amend
the Complaint as proposed.
Although a significant amount of
time has passed since the commencement of this action, it is
through no fault of Plaintiffs.
From a procedural standpoint,
this case is in its infancy, and Defendant will have ample
opportunity to conduct all necessary discovery and file any
appropriate motions to address the newly-added
In granting this Motion, the Court does not express
an opinion about whether the amendments relate back or whether
the relevant limitations periods have been tolled as to the
Those issues are more appropriately the
subject of dispositive motions.
Plaintiffs shall file their First Amended Complaint
by November 27, 2017.
Based on the foregoing, the Court HEREBY GRANTS
Plaintiffs’ Motion for Leave to File First Amended Complaint,
filed October 20, 2017.
IT IS SO ORDERED.
Honolulu, Hawaii, November 20, 2017.
Kevin S.C. Chang
United States Magistrate Judge
CIVIL NO. 13-00135 SOM-KSC; BALD, ET AL. V. WELLS FARGO BANK, N.A.,
ET AL.; ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST
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