Hakes v. Centennial Bank et al
MEMORANDUM DECISION AND ORDER granting 11 Motion to Dismiss ; granting 19 Motion to Strike ; denying 23 Motion to Amend/Correct; finding as moot 25 Motion for TRO; finding as moot 25 Motion for Preliminary Injunction. Plaintiff's Complaint is Dismissed with Prejudice. Signed by Judge Ted Stewart on 5/23/2011. (las)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
ALLEN R. HAKES,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION TO STRIKE AND MOTION
TO DISMISS, DENYING
PLAINTIFF’S EX POST FACTO
MOTION TO AMEND, AND
DENYING AS MOOT PLAINTIFF’S
EX PARTE MOTION FOR
CENTENNIAL BANK, INC., et al.,
Case No. 2:11-CV-1 TS
The present matter is before the Court on several motions: Defendants Mortgage
Electronic Registration Systems, Inc., Deutsche Bank National Trust Company as Trustee for
BCAP LLC Trust 2007 - AA2, and ReconTrust Company, N.A.’s (collectively, “Defendants”)
Motion to Strike or in the Alternative to Dismiss Plaintiff’s Amended Complaint Pursuant to
Fed.R.Civ.P. 12(f) and (b)(6),1 Plaintiff’s Ex Post Facto Motion for Leave to Amend Complaint,2
Defendants’ Motion to Dismiss for Failure to State a Claim Pursuant to Fed.R.Civ.P. 12(b)(6),3
and Plaintiff’s Ex Parte Motion for Temporary Restraining Order.4
I. THE AMENDED COMPLAINT
Defendants filed their Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on January
26, 2011. Twenty-nine days later, on February 24, 2011, Plaintiff filed an Amended Complaint.
Prior to filing his Amended Complaint, Plaintiff did not seek leave from this Court or obtain
written permission from the Defendants. Thereafter, on March 10, 2011, Defendants moved to
strike the Amended Complaint because it was beyond the time available under the Federal Rules
to file an amended complaint as a matter of course and Plaintiff had not sought leave from this
Court prior to filing the Amended Complaint. On March 24, 2011—fourteen days after
Defendants filed their Motion to Strike and twenty-eight days since Plaintiff filed his Amended
Complaint—Defendant filed a motion entitled Ex Post Facto Motion for Leave to Amend
Complaint. Therein, Plaintiff attempts to seek leave from this Court to file his already filed
Docket No. 19.
Docket No. 23.
Docket No. 11.
Docket No. 25.
Under Fed.R.Civ.P. 15(a), a party may amend its pleading once as a matter of course
within 21 days after the service of a motion under Rule 12(b).5 Thereafter, “a party may amend
its pleadings only with the opposing party’s written consent or the court’s leave.”6 By filing his
Amended Complaint prior to seeking leave from this Court, Plaintiff clearly failed the
requirements of the Federal Rules. In Plaintiff’s memoranda seeking ex post facto leave to file
its Amended Complaint, Plaintiff argues that his failure to comply with the federal rules should
be excused in the interest of judicial economy. The Court finds that the interest of judicial
economy are best served by upholding the clear and unequivocal deadlines contained in the
Federal Rules. To hold otherwise would encourage a system where a party only seeks leave to
amend if, and only if, the opposing party notices the untimely filing and moves to strike the
amended pleading. Such a system is contrary to the clear language of Fed.R.Civ.P. 15(a), which
allows amendment “only with the opposing party’s written consent or the court’s leave.”7 The
Court will, therefore, strike Plaintiff’s Amended Complaint and deny Plaintiff’s efforts to
retroactively excuse his failure to comply with the Federal Rules.
II. MOTION TO DISMISS
Defendants move to dismiss Plaintiff’s original complaint for failure to state a claim upon
which relief can be granted. Defendants contend that each of the causes of action alleged in the
Complaint have been repeatedly rejected by this Court and rely upon meritless misinterpretations
Id. at 15(a)(2)
Id. (emphasis added).
of case law and Utah statutes. The Court agrees. In reviewing Plaintiff’s arguments, the Court
finds no meaningful distinction between this cause of action and the numerous actions the Court
has previously dismissed.8 As persuasively demonstrated by Defendants in their memoranda, the
present claims have been considered, and rejected, by this Court. The Court finds no reason to
depart from its prior holdings that these claims fail as a matter of law.
Because Plaintiffs have failed to plead a cause of action upon which relief may be
granted, the Court will grant Defendants’ Motion to Dismiss.
It is therefore
ORDERED that Defendants’ Motion to Strike or in the Alternative to Dismiss Plaintiff’s
Amended Complaint Pursuant to Fed.R.Civ.P. 12(f) and (b)(6) (Docket No. 19) is GRANTED.
It is further
ORDERED that Plaintiff’s Ex Post Facto Motion for Leave to Amend Complaint (Docket
No. 23) is DENIED. It is further
ORDERED that Defendants’ Motion to Dismiss for Failure to State a Claim Pursuant to
Fed.R.Civ.P. 12(b)(6) (Docket No. 11) is GRANTED. Plaintiff’s Complaint is DISMISSED
WITH PREJUDICE. It is further
See, e.g., Burnett v. Mortg. Elec. Registration Sys., 2009 WL 3582294 (D. Utah Oct. 27,
2009); Rodeback v. Mortg. Elec. Registration Sys., 2010 WL 2757243 (D. Utah July 13, 2010);
Foster v. BAC Home Loan Servicing, LP, 2010 WL 3791976 (D. Utah Sept. 22, 2010); Van
Leeuwen v. SIB Mortg. Corp., 2011 WL 13798 (D. Utah Jan. 4, 2011).
ORDERED that Plaintiff’s Ex Parte Motion for Temporary Restraining Order (Docket
No. 25) is DENIED AS MOOT.
The Clerk of the Court is directed to close the case.
DATED May 23, 2011.
BY THE COURT:
United States District Judge
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