Witt v. Hampton & Hampton et al

Filing 37

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)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
Mark W. Witt,
4
5
6

Plaintiff,
vs.
Hampton & Hampton, et. al.,

7
8

Defendant.

9
10

)
)
)
)
)
)
)
)
)
)

Case No.: 2:13-cv-2344-GMN-GWF
ORDER

Pending before the Court is the Motion to Dismiss, (ECF No. 12), filed by Defendants

11

Saticoy Bay LLC and Saticoy Bay LLC Series 8304 Broad Peak LLC (“Saticoy Defendants”),

12

to which Plaintiff Mark W. Witt filed a Response, (ECF No. 15).

13

Also before the Court is Plaintiff’s Motion to Amend the Complaint. (ECF No. 28). The

14

Saticoy Defendants filed a Response to this Motion, (ECF No. 29), as did Defendants Hampton

15

& Hampton and Hampton & Hampton Collections, LLC (“Hampton Defendants”), (ECF No.

16

33). Plaintiff, in turn, filed two Replies. (ECF Nos. 32, 34).

17

I. BACKGROUND

18

In December 2013, Plaintiff filed the instant action in state court, setting forth claims for

19

(1) Quiet Title, (2) Unfair Debt Collection Practices pursuant to Nev. Rev. Stat. § 649.370, (3)

20

Conversion, and (4) Unjust Enrichment, related to the collection of homeowners’ association

21

fees and a purported foreclosure upon his residence. (Compl., ECF No. 1-2). The Hampton

22

Defendants removed the case on December 26, 2013, citing this Court’s federal question

23

jurisdiction pursuant to 28 U.S.C. § 1331. (Removal Petition, ECF No. 1).

24

In their Motion, the Saticoy Defendants argue that the Complaint should be dismissed

25

because they are bona fide purchasers and because Plaintiff’s claim for conversion is invalid

Page 1 of 3

1

under Nevada law. (ECF No. 12). In his Motion, Plaintiff requests leave to file an Amended

2

Complaint which would (1) include more factual allegations regarding Defendants’ failures to

3

adhere to notice requirements prior to the purported foreclosure, (2) add Silverstone Ranch

4

Community Association as a defendant, and (3) set forth additional claims regarding defects in

5

the purported foreclosure. (ECF No. 28).

6

II. LEGAL STANDARD

7

Pursuant to Rule 15(a), a court should “freely” give leave to amend “when justice so

8

requires,” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on

9

the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

10

undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the

11

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

12

Generally, leave to amend is only denied when it is clear that the deficiencies of the

13

complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d

14

655, 658 (9th Cir. 1992).

15

III. DISCUSSION

16

Here, the Court finds that there is more than an adequate basis to grant Plaintiff’s

17

Motion to Amend, (ECF No. 28), pursuant to Rule 15. This is Plaintiff’s first request to amend

18

the Complaint, and the allegations, claims, and party he seeks to add are not futile. The Court

19

finds no indication in the record that any defendant will face undue prejudice if Plaintiff is

20

allowed to file an Amended Complaint. In fact, the Hampton Defendants state in their

21

Response that Plaintiff’s Motion to Amend “is clearly timely” and “[will] not cause any

22

specific prejudice.” Accordingly, the Court will grant Plaintiff’s Motion to Amend, (ECF No.

23

28), and will deny as moot the Saticoy Defendants’ Motion to Dismiss, (ECF No. 12).

24

///

25

///

Page 2 of 3

1

IV. CONCLUSION

2

IT IS HEREBY ORDERED that the Motion to Amend (ECF No. 28) is GRANTED.

3

Plaintiff shall file an Amended Complaint by October 20, 2014. Failure to do so by this

4

deadline may result in dismissal of the action with prejudice.

5
6

IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 12) is DENIED as
moot.

7
8

DATED this 29th day of September, 2014.

9
10
11

___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 3 of 3