Browning v. BAC Home Loans Servicing, L.P. et al
Filing
17
OPINION & ORDER re: motion to amend. Signed by Judge James P. Jones on 5/8/12. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
CAROLYN BROWNING,
Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, ET AL.,
Defendants.
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Case No. 1:12CV00009
OPINION AND ORDER
By: James P. Jones
United States District Judge
Terrence Shea Cook, T. Shea Cook, P.C., Richlands, Virginia, for Plaintiff.
Jacob S. Woody, McGuireWoods LLP, Charlottesville, Virginia, for Defendants.
The plaintiff’s action was previously dismissed for failure to state a claim.
She has now filed a motion seeking to amend her Complaint. The plaintiff failed to
exercise her right to amend prior to dismissal and has failed to file a motion
seeking relief from the judgment prior to filing the instant motion. If, however, the
plaintiff files a proposed amended complaint within 14 days showing that leave to
amend should be granted pursuant to Rule 15(a), I will treat the motion as one both
for relief from judgment and to amend the Complaint and consider it on the merits.
I
The plaintiff, Carolyn Browning, filed suit in state court seeking to have the
foreclosure sale of her home set aside. The defendants removed the case to this
court and moved to dismiss. On April 5, 2012, this court granted the defendants’
Motion to Dismiss and dismissed the action. On April 24, 2012, the plaintiff filed
the present Motion to Amend, seeking the court’s permission to file “amended
pleadings responsive to the deficiencies identified in this Courts [sic] opinion….”
(Pl.’s Mot. to Amend.) The plaintiff did not state any further specific grounds for
the motion, nor did she submit a proposed amended complaint.
A party seeking to amend a pleading after the court has granted a motion to
dismiss with prejudice must first move for relief from judgment pursuant to Fed. R.
Civ. P. 59(e) or 60(b). See Laber v. Harvey, 438 F.3d 404, 427-28 (4th Cir. 2006)
(“There is one difference between a pre- and a post-judgment motion to amend:
the district court may not grant the post-judgment motion unless the judgment is
vacated pursuant to Rule 59(e) or [Rule] 60(b).”); see also Camp v. Gregory, 67
F.3d 1286, 1289 (7th Cir. 1995) (noting that although a plaintiff has a right to
amend once as a matter of right, such right is extinguished once final judgment is
entered in the case and the plaintiff must file a motion under Rules 59(e) or 60(b)
and under Rule 15(a)).
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A party seeking relief from judgment must make a strong showing that “a
significant change in circumstances warrants revision of the decree.” Rufo v.
Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992). The strict standard for
relief from judgment must be balanced with the liberal standard accorded to
motions to amend pursuant to Rule 15(a). See Laber, 438 F.3d at 426. Leave to
amend a complaint “should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith on the part of the moving
party, or the amendment would have been futile.” Id. at 426-27 (internal quotation
marks omitted). The fact that the plaintiff’s motion for leave to amend was filed
post-judgment is not sufficient to deny the motion. Id. at 427.
As it stands, the plaintiff has presented nothing upon which this court can
assess whether relief should be granted. It is not possible to determine whether
there is any bad faith on the part of the plaintiff, whether the proposed amended
complaint would be prejudicial to the defendant or whether it would be futile. See
Id. at 428-29. The plaintiff’s failure to properly present her motion would, on its
own, be sufficient grounds for denial of the motion. Fed. R. Civ. P. 7(b)(1)(B)
(requiring motion to “state with particularity the grounds for seeking the order”).
See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1185-86 (10th
Cir. 1999) (finding that district court did not err in refusing to consider plaintiff’s
request to amend where plaintiff failed to file a motion under Rules 59(e) or 60(b)
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and failed to provide any grounds for request). However, taking into account the
liberal standard under Rule 15(a) and the importance of determining a case on its
merits, I will consider the plaintiff’s motion as a Rule 15(a) motion filed in
conjunction with a Rule 59(e) motion, if the plaintiff submits a proposed amended
complaint.1 See Camp, 67 F.3d at 1290 (finding that district court retains the
discretion to treat a Rule 15(a) motion as one also made under Rules 59 or 60).
Upon the filing of the proposed amended complaint, I will assess the merits of the
plaintiff’s motion.
II
For the reasons stated, the plaintiff must file a proposed amended complaint
as an exhibit to the Motion to Amend within 7 days of entry of this Opinion and
Order. If no such proposed amended complaint is so filed, the present Motion to
Amend will be denied. If a proposed amended complaint is timely filed, the
defendants may respond to the Motion to Amend within 7 days of service. The
Motion to Amend shall then be deemed submitted for decision.
It is so ORDERED.
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The plaintiff’s motion was filed within 28 days after the entry of judgment and
would therefore be timely were the court to treat it as a motion to alter or amend the
judgment under Rule 59. Fed. R. Civ. P 59(b).
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ENTER: May 8, 2012
/s/ James P. Jones
United States District Judge
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