Boardley et al v. Household Finance Corporation III et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part 42 MOTION for Leave to File Third Amended Complaint ; scheduling a Rule 16 Conference for Tuesday June 23. 2015 at 1:00 p.m. Signed by Judge Paul W. Grimm on 6/1/2015. (Attachments: # 1 Scheduling Order, # 2 Discovery Order)(aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EURKERT BOARDLEY, et al.,
Case No.: PWG-12-3009
CORPORATION III, et al.,
Plaintiffs Eurkert Boardley and Senta Boardley’s complaint in this suit, which challenges
the actions of Defendants Household Finance Corp. III (“Household”) and HSBC Holdings Inc.,
plc (“HSBC”) with regard to the loan agreement through which Plaintiffs financed their home,
has been through three iterations and been pared down from thirteen counts to two properly
pleaded counts. Plaintiffs seek leave to amend for a third time to reintroduce seven of the claims
dismissed in the August 14, 2014 Memorandum Opinion and Order, ECF Nos. 36 & 37. 1 ECF
No. 42. Because Plaintiffs already have had two opportunities to correct any deficiencies in their
pleadings, I will deny their request as to all but one claim, for the reasons discussed below. 2
Whether to grant a motion for leave to amend is within this Court’s discretion. Foman v.
Davis, 371 U.S. 178, 182 (1962). Pursuant to Rule 15, “[t]he court should freely give leave [to
amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). But, the Court should deny leave to
I discussed the facts at length in that Memorandum Opinion and will not restate them now.
The parties fully briefed the motion. ECF Nos. 42, 43, 44. A hearing is not necessary. See
Loc. R. 105.6.
amend if doing so “would prejudice the opposing party, reward bad faith on the part of the
moving party, or . . . amount to futility.” MTB Servs., Inc. v. Tuckman-Barbee Constr. Co., No.
RDB-12-2109, 2013 WL 1819944, at *3 (D. Md. Apr. 30, 2013). Notably, for purposes of this
case, “repeated failure to cure deficiencies by amendments previously allowed” also is a reason
to deny leave to amend. Foman, 371 U.S. at 182; Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.
Here, Plaintiffs filed their first Motion for Leave to Amend, ECF No. 17, in response to
Defendants’ first Motion to Dismiss, ECF No. 11, which alerted Plaintiffs to possible
deficiencies in their pleadings. Indeed, Plaintiffs repeatedly stated that the motion to amend
incorporated “the facts and arguments in the Opposition to Defendants’ Motion to Dismiss.”
Pls.’ First Mot. to Am. 2, 3, 4. Additionally, they specifically asked to amend to “cure
deficiencies pertaining to Defendants’ arguments about pleading an enterprise and racketeering
activity,” and asserted three times that the amendments were not futile because “they serve[d] to
cure any alleged deficiency of pleading posed by vagueness.” Id. at 4.
After I granted Plaintiffs’ first motion to amend, ECF No. 20, Plaintiffs filed their
Amended Complaint, ECF No. 21, and Defendants moved to dismiss the Amended Complaint,
ECF No. 24. Plaintiffs filed their second Motion for Leave to Amend, ECF No. 33, again to
address deficiencies specifically identified in Defendants’ motion to dismiss. As in their first
motion to amend, Plaintiffs contended that the proposed amendments “serve[d] to cure any
alleged deficiency of pleading posed by Defendants” and “to clarify the violations.” Id. at 2, 3;
see also id. at 2 (“The proposed amendments [were] made in good-faith in response to alleged
deficiencies in pleading proffered by Defendants.”). And, once again, Plaintiffs incorporated
“the facts and arguments in the Opposition to Defendants’ Second Motion to Dismiss.” Id. at 2,
3. I granted that motion in part and denied it in part as futile. Aug. 14, 2014 Order 1.
Now, Plaintiffs seek leave to amend for a third time, insisting that they “are endeavoring
in good faith to comply with guidance from this court as indicated in its memorandum opinion
issued August 14, 2014, pertaining to Defendants’ motion to dismiss.” Pls.’ Third Mot. to Am.
Citing Foman, 371 U.S. at 182, Plaintiffs acknowledge that the Court may “deny an
amendment where there has been undue delay, bad faith, dilatory motive or repeated failure to
cure deficiencies by amendments previously allowed; where allowing amendment would cause
undue prejudice to the opposing party; or where the amendment would be futile.” Id. Yet, when
they “submit that none of the factors listed under Foman . . . are present here,” they acknowledge
only “undue delay, dilatory motive, bad faith, undue prejudice, or futility.” Id. Tellingly
lacking is the very reason why this motion to amend must be denied: “repeated failure to cure
deficiencies by amendments previously allowed.” See Foman, 371 U.S. at 182.
Plaintiffs have had two previous opportunities to amend, in response to alleged
deficiencies identified by Defendants, and they only succeeded in curing one deficient claim, the
alleged violation of the Maryland Consumer Protection Act (“MCPA”), Md. Code Ann., Com.
Law § 13-101 et seq. There must come a time in a lawsuit when a party, having had prior
opportunities to amend to address pleading deficiencies identified by the Court or adverse party,
must proceed with the claims that have withstood challenge. Otherwise, the issues would never
be joined, discovery would remain open indefinitely, and, like the common law pleaders of
former times, the suit would devolve into an endless series of complaints, demurrers, and
responsive complaints. There is a reason why modern rules of pleading rejected the practices of
former times, and in this case, the Plaintiff has had more than a fair opportunity to draft a viable
complaint. For this reason, Plaintiffs’ pending motion to amend is denied insofar as Plaintiffs
seek leave to amend any claim other than the MCPA claim. See Foman, 371 U.S. at 182; see
also Kiraly v. Bd. of Educ. of Prince George's Cnty., No. DKC-11-2845, 2013 WL 4495792, 3
(D. Md. Aug. 20, 2013) (“[I]n permitting Plaintiff leave to file her second amended complaint,
the court provided a detailed account of the pleading requirements for the claims she attempted
to raise. Plaintiff’s counsel failed to take advantage of that opportunity, however, and there is no
reason to believe that a different result would obtain upon the filing of a third amended
complaint.”). Inasmuch as Plaintiffs’ proposed amendments to the MCPA claim appear to be
made in good faith and do not appear to prejudice Defendants or to be futile, Plaintiffs’ motion is
granted as to those limited amendments. See Foman, 371 U.S. at 182.
Accordingly, it is, this 1st day of June, 2015, hereby ORDERED that
1. Plaintiffs’ Motion for Leave to Amend, ECF No. 42, IS GRANTED IN PART AND
DENIED IN PART. Plaintiffs may amend their MCPA claim only.
2. A Rule 16 conference call IS SCHEDULED for Tuesday, June 23, 2015, at 1:00
p.m. Plaintiffs’ counsel shall initiate the call to my chambers.
The Scheduling Order and Discovery Order are attached to this Memorandum Opinion
Dated: June 1, 2015
Paul W. Grimm
United States District Judge
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