Witt v. Hampton & Hampton et al
Filing
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ORDER Granting 28 Motion to Amend Complaint. Denying as moot 12 Motion to Dismiss. Amended Complaint deadline: 10/20/2014. Signed by Chief Judge Gloria M. Navarro on 9/29/2014. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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Mark W. Witt,
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Plaintiff,
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Hampton & Hampton, et. al.,
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Defendant.
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Case No.: 2:13-cv-2344-GMN-GWF
ORDER
Pending before the Court is the Motion to Dismiss, (ECF No. 12), filed by Defendants
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Saticoy Bay LLC and Saticoy Bay LLC Series 8304 Broad Peak LLC (“Saticoy Defendants”),
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to which Plaintiff Mark W. Witt filed a Response, (ECF No. 15).
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Also before the Court is Plaintiff’s Motion to Amend the Complaint. (ECF No. 28). The
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Saticoy Defendants filed a Response to this Motion, (ECF No. 29), as did Defendants Hampton
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& Hampton and Hampton & Hampton Collections, LLC (“Hampton Defendants”), (ECF No.
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33). Plaintiff, in turn, filed two Replies. (ECF Nos. 32, 34).
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I. BACKGROUND
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In December 2013, Plaintiff filed the instant action in state court, setting forth claims for
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(1) Quiet Title, (2) Unfair Debt Collection Practices pursuant to Nev. Rev. Stat. § 649.370, (3)
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Conversion, and (4) Unjust Enrichment, related to the collection of homeowners’ association
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fees and a purported foreclosure upon his residence. (Compl., ECF No. 1-2). The Hampton
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Defendants removed the case on December 26, 2013, citing this Court’s federal question
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jurisdiction pursuant to 28 U.S.C. § 1331. (Removal Petition, ECF No. 1).
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In their Motion, the Saticoy Defendants argue that the Complaint should be dismissed
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because they are bona fide purchasers and because Plaintiff’s claim for conversion is invalid
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under Nevada law. (ECF No. 12). In his Motion, Plaintiff requests leave to file an Amended
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Complaint which would (1) include more factual allegations regarding Defendants’ failures to
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adhere to notice requirements prior to the purported foreclosure, (2) add Silverstone Ranch
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Community Association as a defendant, and (3) set forth additional claims regarding defects in
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the purported foreclosure. (ECF No. 28).
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II. LEGAL STANDARD
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Pursuant to Rule 15(a), a court should “freely” give leave to amend “when justice so
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requires,” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on
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the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
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undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the
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amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
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Generally, leave to amend is only denied when it is clear that the deficiencies of the
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complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d
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655, 658 (9th Cir. 1992).
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III. DISCUSSION
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Here, the Court finds that there is more than an adequate basis to grant Plaintiff’s
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Motion to Amend, (ECF No. 28), pursuant to Rule 15. This is Plaintiff’s first request to amend
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the Complaint, and the allegations, claims, and party he seeks to add are not futile. The Court
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finds no indication in the record that any defendant will face undue prejudice if Plaintiff is
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allowed to file an Amended Complaint. In fact, the Hampton Defendants state in their
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Response that Plaintiff’s Motion to Amend “is clearly timely” and “[will] not cause any
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specific prejudice.” Accordingly, the Court will grant Plaintiff’s Motion to Amend, (ECF No.
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28), and will deny as moot the Saticoy Defendants’ Motion to Dismiss, (ECF No. 12).
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IV. CONCLUSION
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IT IS HEREBY ORDERED that the Motion to Amend (ECF No. 28) is GRANTED.
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Plaintiff shall file an Amended Complaint by October 20, 2014. Failure to do so by this
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deadline may result in dismissal of the action with prejudice.
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IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 12) is DENIED as
moot.
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DATED this 29th day of September, 2014.
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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court
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