Traber et al v. Mortgage Electronic Registration Systems, Inc. et al

Filing 48

ORDER granting 40 Motion for Second Amended Complaint; denying as moot 27 Motion to Dismiss Amended Complaint; denying as moot 42 Joint Motion for Extension of Time to File Response/Reply; and denying as moot 26 Mo tion to Dismiss Plaintiffs' Amended Complaint. Plaintiffs shall have 14 days from the entry of this Order to file the Second Amended Complaint. Defendants shall have 20 days from the filing of the Second Amended Complaint to file their answer or otherwise respond. Signed by Magistrate Judge Dennis Howell on 11/9/11. (Pro se litigant served by US Mail.)(nll)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv126
LAWRENCE L. TRABER, and
ELGE L. TRABER,
Plaintiffs,
v.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, INC.,
MID-ATLANTIC FINANCIAL
SERVICES, INC., IMORTGAGE
SERVICES, BANK OF AMERICA
HOME LOANS SERVICING, L.P.,
FANNIE MAE,
Defendants.
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ORDER

Pending before the Court are Defendants’ Motions to Dismiss [# 26 & # 27]
and Plaintiffs’ Motion for Second Amended Complaint [# 40]. The Court
GRANTS Plaintiffs’ motion [# 40].
I.

Analysis

Federal Rule of Civil Procedure 15(a) provides that a party may amend its
pleading after the expiration of the time periods specified in Rule 15(a)(1) "only
with the opposing party's written consent or the court's leave." Fed. R. Civ. P.
15(a)(2). Rule 15(a)(2) further provides that leave to amend shall be freely given
"when justice so requires." Id. Absent a showing of undue delay, bad faith,

futility, or prejudice to the opposing party, a court should grant a party leave to
amend. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227 (1962); Equal Rights
Center v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010); Laber v.
Harvey, 438 F.3d 404, 426-27 (4th Cir. 2006).
Plaintiffs, who are proceeding pro se, seek leave to file a Second Amended
Complaint in order to clarify the factual allegations contained in their Amended
Complaint. Upon a review of the pleadings in this case, the Court finds that
granting Plaintiffs one final opportunity to amend and state a claim against each
Defendant is warranted. Although Defendants may ultimately prevail on having
Plaintiffs’ claims dismissed, the Court cannot say that the proposed amendments
are so futile as to warrant denying pro se Plaintiffs a final opportunity to amend.
Because allowing Plaintiffs leave to amend will not result in undue delay or
prejudice to Defendants, and the proposed amendments are not futile or made in
bad faith, leave to amend is appropriate in this case. See Equal Rights Center, 602
F.3d at 603; Laber, 438 F.3d at 426-27. Accordingly, the Court GRANTS
Plaintiffs’ motion [# 40].
The Court, however, INSTRUCTS Plaintiffs that barring a showing of
exceptional circumstances, the Court will not allow further amendments to the
Second Amended Complaint. Plaintiffs should file a Second Amended Complaint
that incorporates all the factual allegations necessary to state a claim against each

Defendant. If Defendants move to dismiss the Second Amended Complaint, the
Court will consider only the well pled factual allegations contained in the Second
Amended Complaint and will not consider any factual allegations set forth only in
the response to a motion to dismiss.
II.

Conclusion

The Court GRANTS Plaintiffs’ Motion for Second Amended Complaint [#
40]. The Court DENIES as moot Defendants’ Motions to Dismiss [# 26 &

#

27] and Joint Motion for Extension of Time [# 42]. Plaintiffs shall have fourteen
(14) days from the entry of this Order to file the Second Amended Complaint.
Defendants shall have twenty (20) days from the filing of the Second Amended
Complaint to file their answer or otherwise respond.

Signed: November 9, 2011