Bryan v. Bank of America, N.A. et al

Filing 43

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiffs Motion for Leave of Court to File Second Amended Complaint (ECF No. 35 ) is GRANTED. The Clerk of the Court shall file Attachment 1 to the motion (ECF No. 35-1) as Plaintiffs Second Amen ded Complaint. IT IS FURTHER ORDERED that Plaintiff shall file an appropriate motion to remand no later than May 1, 2018. IT IS FINALLY ORDERED that Plaintiffs Motion for Leave of Court to File Additional Memorandum (ECF No. 42 ) is DENIED as MOOT. Signed by District Judge Ronnie L. White on 4/25/2018. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROY SCOTT BRYAN,
Plaintiff,
v.
BANK OF AMERICA, N.A., AS
SUCCESSOR BY MERGER TO
BAC HOME LOANS SERVICING, L.P.,
Defendant.

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No. 4:17CV1616 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Motion for Leave of Court to File Second
Amended Complaint. (ECF No. 35) Defendant Bank of America, N.A., as Successor by Merger
to BAC Home Loans Servicing, L.P., opposes the motion. Upon review of the motion and
related memoranda, the Court will grant Plaintiff's motion.
The Court set forth the background of this case in its Memorandum and Order of January
18, 2018. (ECF No. 34 pp. 1-3) Those facts are incorporated herein. In granting, in part, and
denying, in part, Defendant's motion to dismiss, the Court ordered the Plaintiff to amend his
First Amended Complaint to state detailed information regarding Defendant's allegedly
fraudulent acts in support of Plaintiffs MMPA claim. (ECF No. 34 pp. 7-10) Plaintiff then filed
a motion for leave to file a second amended complaint, seeking to add supplementary facts in
support of his claim for wrongful foreclosure and a new claim to quiet title against Defendant
and the current title holders ofrecord, Jay Scott and Kimberly Ann Hoskins (collectively
"Hoskins"). Defendant opposes the motion, asserting that the Court should deny Plaintiffs

motion for leave to amend because such amendment would be futile and prejudicial to
Defendant.
Rule 15 of the Federal Rules of Civil Procedure provides that a party may amend a
pleading once as a matter of course within 21 days after serving the pleading or, in all other
cases, with written consent of the opposing party or by leave of court. Fed. R. Civ. P. 15(a).
"The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "A
district court appropriately denies the movant leave to amend if 'there are compelling reasons
such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the non-moving party, or futility of the
amendment."' Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008) (quoting

Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir.
2005)).
Here, Plaintiff contends that his Second Amended Complaint complies with the Court's
order by pleading only an equitable claim for wrongful foreclosure but adds facts in support of
his claim with respect to the publication of notice. Plaintiff also asserts that his MMP A claim
now contains sufficient details under the heightened pleading standard. Finally, Plaintiff states
that a quiet title claim against the Hoskins is appropriate. Defendant, on the other hand, asserts
that the proposed amended complaint could not withstand a motion to dismiss under Fed. R. Civ.
P. 12(b)(6).
The Court finds that leave to file a Second Amended Complaint is warranted. Defendant
elected to file a motion to dismiss in lieu of an Answer. Therefore, the Court has not yet held a
Rule 16 conference or entered a Case Management Order with discovery deadlines pursuant to

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Fed. R. Civ. P. 16. Allowing Plaintiff file an amended complaint would not prejudice
Defendant.
However, Defendant also argues that the Court should deny Plaintiffs motion to amend
because such amendment is futile. "The standard for dismissing a motion to amend because of
futility is stringent. ' [A] party's motion to amend should be dismissed on the merits only if it
asserts clearly frivolous claims or defenses. Likelihood of success on the new claim is no basis
for denying an amendment unless the claim asserted therein is clearly frivolous."' Coller v.
Doucette, No. 4:09CV780 AGF, 2010 WL 319652, at *1 (E.D. Mo. Jan. 20, 2010) (quoting
Gamma-JO Plastics, Inc. v. Am. President Lines, Ltd., 32 F.3d 1244, 1255-56 (8th Cir. 1994)).
Here, the Court finds that at the early stages of litigation, Plaintiff alleges facts that could support
a claim for equitable wrongful foreclosure, violation of the MMP A, and quiet title. Id.
Defendant also argues that the Court should deny Plaintiffs motion to amend because he
seeks to add non-diverse defendants. "When an action is removed from state to federal court,
and 'after removal the plaintiff seeks to join additional defendants whose joinder would destroy
subject matter jurisdiction, the court may deny joinder, or permitjoinder and remand the action
to the State court."' Bailey v. Bayer CropScience L.P., 563 F.3d 302, 307-08 (8th Cir. 2009)
(quoting 28 U.S.C. § 1447(e)). "In determining whether to permit the amendment, the Court
considers the following factors: '1) the extent to which the joinder of the nondiverse party is
sought to defeat federal jurisdiction, 2) whether [the] plaintiff has been dilatory in asking for
amendment, and 3) whether [the] plaintiff will be significantly injured if amendment is not
allowed."' Johnson v. Travelers Home & Marine Ins. Co., No. 4:10CV520 JCH, 2010 WL
1945575, at *1 (E.D. Mo. May 12, 2010) (quoting Bailey, 563 F.3d at 309 (internal quotations
and citations omitted)).

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The Court acknowledges that Plaintiff knew of the Hoskins at the time of filing the state
court petition and later voluntarily dismissed them as a party, leading to removal. However, in
addressing Defendant's motion to dismiss, the Court denied the motion with respect to the
equitable wrongful foreclosure claim. (ECF No. 34, pp. 5-7) According to Plaintiff, the quiet
title action is now necessary in light of the Court's ruling that Plaintiff has stated an equitable
claim for wrongful foreclosure and may seek to void the sale of the property. While adding a
previously known non-diverse defendant after the case is removed strongly indicates a purpose
to defeat federal jurisdiction, the Court does not find such improper motive in this case. See
Johnson v. Texas Roadhouse Holdings, LLC, No. 4:10-CV-36 CDP, 2010 WL 2978085, at *2
(E.D. Mo. July 23, 2010) (addressing facts that tended to show improper motive). Further, the
Court finds that Plaintiff could be injured if unable to fully pursue the recovery of his property.
Accordingly,

IT IS HEREBY ORDERED that Plaintiffs Motion for Leave of Court to File Second
Amended Complaint (ECF No. 35) is GRANTED. The Clerk of the Court shall file Attachment
1 to the motion (ECF No. 35-1) as Plaintiffs Second Amended Complaint.

IT IS FURTHER ORDERED that Plaintiff shall file an appropriate motion to remand
no later than May 1, 2018.

IT IS FINALLY ORDERED that Plaintiffs Motion for Leave of Court to File
Additional Memorandum (ECF No. 42) is DENIED as MOOT.
Dated this 25th day of April, 2018.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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