Floyd et al v. Countrywide Home Loans, Inc. et al

Filing 86

ORDER granting in part and denying in part 66 Motion to Strike ; adopting Findings and Recommendations re 77 Findings and Recommendations. Signed by Chief Judge Dana L. Christensen on 10/10/2013. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DANIEL FLOYD and KELLEY
FLOYD,

CV 12–79–M–DLC

Plaintiffs,
ORDER
vs.
COUNTRYWIDE HOME LOANS,
INC.; BAC HOME LOAN
SERVICING LP f/k/a
COUNTRYWIDE HOME LOANS
SERVICING LP; THORNBURG
MORTGAGE SECURITIES TRUST
2007-3; THORNBURG MORTGAGE
SECURITIES TRUST 2006-6;
RECONTRUST COMPANY NA;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.;
BANK OF AMERICA, N.A.; and
DOES 1 through 10,
Defendants.
United States Magistrate Judge Jeremiah C. Lynch entered Findings and

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Recommendation on August 22, 2013, recommending that the Defendants’ Motion
to Strike Plaintiffs’ Second Amended Complaint be granted in part and denied in
part. Neither party timely objected to the Findings and Recommendation, and so
have waived the right to de novo review of the record. 28 U.S.C. § 636(b)(1).
This Court will review the Findings and Recommendation for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). Clear error exists if the Court is left with a “definite and firm
conviction that a mistake has been committed.” United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000).
There is no clear error in Judge Lynch’s Findings and Recommendation.
Plaintiffs’ amendment to paragraph 31 of the First Amended Complaint – now
paragraph 29 of the Second Amended Complaint – impermissibly attempts to add
new claims against Bank of America, which was not authorized by the Court’s
prior Order. Likewise, paragraph 30(a)-(d) improperly attempts to expand the
Floyds’ negligence claim against Bank of America in a manner not authorized by
the Court’s previous Order. Therefore, the amendments to former paragraph 31,
and the allegations in paragraph 30(a)-(d) of the Second Amended Complaint must
be stricken.
The allegations set forth in paragraph 30(e)-(r) and paragraph 36 of the
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Second Amended Complaint support the Floyds claim of negligence as advanced
in paragraph 29 of the First Amended Complaint. Therefore, these are permissible
amendments and they will not be stricken. None of the other contested
amendments, regarding the prayer for relief or clarification of who owned the
property that made up the Spring Creek Ranch, need be stricken because this
evidence would inevitably be presented at trial. The other minor, uncontested
amendments also need not be stricken.
Accordingly, IT IS ORDERED that Judge Lynch’s Findings and
Recommendation (doc. 77) are ADOPTED in full. Defendants’ Motion to Strike
Plaintiffs’ Second Amended Complaint (doc. 66) is GRANTED IN PART and
DENIED IN PART.
Dated this 10th day of October, 2013.

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