Riekki v. Bayview Financial Loan Servicing et al

Filing 24

ORDER. IT IS HEREBY ORDERED that 11 Motion for Leave to File a First Amended Complaint is GRANTED. Amended Complaint due within 14 days. IT IS FURTHER ORDERED that 8 Motion to Dismiss is DENIED without prejudice as moot. Signed by Chief Judge Gloria M. Navarro on 6/2/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MONA G RIEKKI,
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Plaintiff,

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vs.

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BAYVIEW FINANCIAL LOAN
SERVICING, et al.,

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Defendants.

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Case No.: 2:15-cv-02434-GMN-GWF
ORDER

Pending before the Court is the Motion to Dismiss (ECF No. 8) filed by Defendant Bank

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of American, N.A. (“Defendant”). Also before the Court is Plaintiff Mona G. Riekki’s

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(“Plaintiff”) Motion to Amend the Complaint. (ECF No. 11). Neither party filed a response to

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the motions, and the time to do so has passed. For the reasons discussed below, the Court

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DENIES Defendant’s Motion to Dismiss and GRANTS Plaintiff’s Motion to Amend the

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Complaint.

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I.

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BACKGROUND
Plaintiff filed the instant action in state court, seeking damages for alleged violations of

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the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (Compl., Ex. A to Pet. for Removal,

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ECF No. 1). Defendant Experian Information Solutions, Inc. removed the case to this Court,

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citing federal question jurisdiction pursuant to 28 U.S.C. § 1331. (Id.).

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On December 30, 2015, Defendant filed the instant Motion to Dismiss, arguing that the

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Complaint should be dismissed because “Plaintiff has not alleged that Bank of America

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furnished any inaccurate information regarding [Plaintiff’s Bank of America credit accounts] to

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Experian.” (MTD 9:4–6, ECF No. 8). Shortly thereafter, on January 16, 2016, Plaintiff filed

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the instant Motion requesting leave to file an Amended Complaint which “more clearly

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presents the factual inaccuracies that the named defendants reported on Plaintiff’s credit report

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and the reporting industry standards and guidelines with which defendants failed to comply.”

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(Mot. to Amend Compl. 3:4–7, ECF No. 11).

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 15(a)(1)(A) allows a party to amend its pleading once as

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a matter of course within 21 days after serving it. Fed. R. Civ. P. 15(a)(1)(A). If the pleading is

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one to which a responsive pleading is required, the party may also amend within “21 days after

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service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or

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(f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B).

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Once the time period to amend as a matter of course in Rule 15(a)(1) of the Federal

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Rules of Civil Procedure has passed, “a party may amend its pleading only with the opposing

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party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). However, Rule 15(a)(2)

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further instructs that courts “should freely give leave [to amend] when justice so requires.” Id.

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“In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory

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motive on the part of the movant, repeated failure to cure deficiencies by amendments

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previously allowed, undue prejudice to the opposing party by virtue of allowance of the

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amendment, futility of amendment, etc.—the leave sought should, as the rules require, be

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‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962).

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III.

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DISCUSSION
The Court finds that there is more than an adequate basis to grant Plaintiff’s Motion to

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Amend (ECF No. 11) pursuant to Rule 15. No defendant has yet answered the Complaint,

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Plaintiff has not yet amended it, and Plaintiff filed the motion to amend only seventeen days

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after Defendant filed its Motion to Dismiss (ECF No. 8), which is the first motion to dismiss

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that any defendant has filed in this case. Plaintiff therefore has the right to amend the

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Complaint as a matter of course and need not have requested permission to amend. See Fed. R.

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Civ. P. 15(a)(1)(B). Nevertheless, the Court grants Plaintiff’s Motion to Amend (ECF No. 11)

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and denies as moot the Defendant’s Motion to Dismiss (ECF No. 8).

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File a First Amended

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Complaint (ECF No. 11) is GRANTED. Plaintiff shall have fourteen days from the filing date

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of this Order to file her First Amended Complaint.

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IT IS FURTHER ORDERED that the pending Motion to Dismiss (ECF No. 8) is
DENIED without prejudice as moot.
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DATED this _____ day of June, 2016.

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

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