Bund v. Safeguard Properties LLC

Filing 223

ORDER granting 222 Stipulated Motion to File Fourth Amended Complaint. Signed by Judge Marsha J. Pechman. (PM)

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The Honorable Marsha J. Pechman
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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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JOHN R. BUND II, personally, as Executor
of the Estate of Richard C. Bund, deceased,
and on behalf of others similarly situated,

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NO. 2:16-cv-00920-MJP
STIPULATED MOTION TO FILE
FOURTH AMENDED COMPLAINT

Plaintiffs,

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NOTE ON MOTION CALENDAR:
March 21, 2018

vs.

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SAFEGUARD PROPERTIES, LLC, a
Delaware corporation

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Defendant.

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I.

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STIPULATION

Pursuant to Federal Rule of Civil Procedure 15(a)(2) and LCR 15, Defendant consents

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20 to Plaintiff amending his Third Amended Complaint, Dkt. # 82, in substantially the form of the
21 attached redlined document. By providing consent, Defendant does not agree that Plaintiff’s
22 proposed additional claims have merit or that Plaintiff’s proposed additional class
23 representatives and additional claims satisfy the requirement of Federal Rule of Civil Procedure
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Although Defendant does not adopt Plaintiffs’ position on Local Rule and Federal Rule

26 of Civil Procedure 16, set forth in Part II, below, Defendant does not oppose Plaintiffs’ request
27 for modification of the deadline to amend pleadings.
STIPULATED MOTION TO FILE FOURTH AMENDED
COMPLAINT
(2:16-cv-00920-MJP ) Page 1 of 7

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II.

PLAINTIFFS’ STATEMENT ON RELIEF FROM DEADLINE

Defendant does not join in Part II.
On February 16, 2018, this Court issued its Order Setting Trial Date and Related Dates.
Dkt. # 220. The order does not provide a deadline for amending pleadings or joining parties.
Id. Although issued long before the recent factual and legal developments in this case, and
although it has been largely superseded by Dkt. # 220, this Court’s September 6, 2017
scheduling order appears to remain partially in effect, and provides the operative deadline. Dkt.
# 142 (setting October 16, 2017 as the deadline to join additional parties and file amended
pleadings). Plaintiff seeks to amend his complaint after the October 2017 deadline. Dkt. # 142.
Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order may be modified only
with the Judge’s consent and for “good cause.”
The parties therefore jointly request the Court find good cause to modify Dkt. # 142 and
grant Plaintiff leave to amend his Third Amended Complaint in order to (1) remove the
conversion claim in light of this Court’s Order on Motion to Certify (Dkt. # 204) and consistent
with the stipulated motion to dismiss John Bund’s conversion claim (Dkt. ## 212, 218); (2)
remove allegations relating to Mandy and Garett Hanousek, consistent with this Court’s order
granting Safeguard’s Motion for Summary Judgment Dismissal (Dkt. # 203); (3) remove
allegations relating to Crystal Haynes, in light of this Court’s Order on Motion to Certify (Dkt.
# 204) and consistent with the stipulated motion to dismiss Crystal Haynes claims without
prejudice (Dkt. ## 211, 217); (4) revise and include allegations pertaining to two additional
negligence claims in light of discovery recently conducted by the parties; and (5) join two new
representative plaintiffs only recently identified by Plaintiff’s counsel.
There is good cause to modify this Court’s scheduling order (Dkt. # 142). At the outset,
the parties note that trial in this matter was recently reset for more than fourteen months after
this stipulation is filed. Dkt. # 220. Discovery remains ongoing and the deadline to complete
discovery is January 11, 2019. Id. The deadline to file final dispositive motions is soon after:

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STIPULATED MOTION TO FILE FOURTH AMENDED
COMPLAINT
(2:16-cv-00920-MJP ) Page 2 of 7

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January 22, 2019. Id. In short, the parties have more than ten months—ample time to address
this amendment via discovery and/or dispositive briefing. Safeguard will suffer no undue
prejudice from this amendment.
Class members, on the other hand, may suffer prejudice if this amendment is denied.
The Court has ordered the parties to file briefing addressing John Bund’s standing in light of
his status as an absent class member of the class certified in Jordan v. Nationstar Mortgage,
No. 2:14-CV-0175-TOR. See Dkt. # 221. The new representative plaintiffs identified in
Plaintiff’s proposed Fourth Amended Complaint are not members of the Jordan class or any
similar certified class. Good cause exists to join these new representative plaintiffs to avoid any
possible prejudice to certified class members’ claims if Mr. Bund—the current sole
representative of the class—is dismissed as a class representative.
And finally, the Rule 16(b)(4) “‘good cause standard’ primarily considers the diligence
of the party seeking amendment.” Johnson v. Mammoth Recreations, 975 F.2d 604, 609 (9th
Cir. 1992). Plaintiff has demonstrated more than adequate diligence. And his proposed
amendment addresses recent factual and legal developments in this case by (1) removing
allegations and parties that this Court dismissed and/or declined to certify in recent rulings, and
(2) adding claims and parties recently discovered as a result of formal discovery.
In its recent Order on Certification, this Court declined to certify Plaintiff’s conversion
sub-class. Plaintiff believes that this Court’s Order also suggests that Safeguard’s vendors are
agents rather than independent contractors. Plaintiff therefore believes that, when combined
with this Court’s order, Safeguard’s representation that it never orders its vendors to remove
personal property from homes prior to the completion of foreclosure, as well as information
and documents Safeguard produced in formal discovery on February 27, 2018, March 13, 2018,
and in its 30(b)(6) deposition on March 8, 2018, support additional claims for negligent trespass
and negligent supervision. Plaintiff very recently learned of Scott and Noel James, who have
only recently agreed to serve as class representatives in this case, and representatives of the

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STIPULATED MOTION TO FILE FOURTH AMENDED
COMPLAINT
(2:16-cv-00920-MJP ) Page 3 of 7

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proposed negligence claims.

(suggesting it would be abuse of discretion to deny motion to amend based on new facts).

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Cf Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)

What is more, Plaintiff’s counsel has only quite recently had the opportunity to review
the veracity of Scott’s and Noel’s potential claims against Safeguard. Pursuant to the Court’s
order, Dkt. # 216, p. 2, Plaintiff requested Scott’s and Noel’s property file on March 2, 2018,
and Safeguard produced it on March 13, 2018—long after the October 16, 2017 operative
deadline to amend. Stated otherwise, the scheduling order deadline could not “reasonably [have
been] met despite the diligence of the party seeking the extension.” Zikovic v. Southern
California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Further, Plaintiff’s counsel
reviewed the produced records the next day, verified Scott’s and Noel’s claims, then drafted
and provided this stipulation and proposed amendment for Safeguard’s review on March 15,
2018.
Plaintiff has made every effort to diligently seek this amendment. And there is no
evidence of undue delay, bad faith, dilatory motive, or prejudice to Safeguard. There is thus
good cause to amend Dkt. # 142 and grant Plaintiff leave to amend.

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Respectfully submitted this 21st day of March, 2018.
JEFFERS, DANIELSON, SONN & AYLWARD, P.S.

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s/ CLAY M. GATENS
Clay M. Gatens, WSBA No. 34102
Devon A. Gray, WSBA No. 51485
JEFFERS, DANIELSON, SONN & AYLWARD, P.S.
2600 Chester Kimm Road
P.O. Box 1688
Wenatchee, WA 98807-1688
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

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STIPULATED MOTION TO FILE FOURTH AMENDED
COMPLAINT
(2:16-cv-00920-MJP ) Page 4 of 7

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Respectfully submitted this 21st day of March, 2018.

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Michael D. Daudt, WSBA #25690
DAUDT LAW PLLC
2200 Sixth Avenue, Suite 1250
Seattle, Washington 98121
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Respectfully submitted this 21st day of March, 2018.

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Beth E. Terrell, WSBA #26759
Blythe H. Chandler, WSBA #43387
TERRELL, MARSHALL LAW GROUP PLLC
Attorneys for Plaintiffs
936 North 34th Street, Suite 300
Seattle, Washington 98103
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiff

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Respectfully submitted this 21st day of March, 2018.
LEE SMART, P.S., INC.

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s/PAMELA J. DEVET
Pamela J. DeVet, WSBA No. 32882
Kellan W. Byrne, WSBA No. 49825
701 Pike Street, Suite 1800
Seattle, WA 98101
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Defendant Safeguard Properties
Management, LLC

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STIPULATED MOTION TO FILE FOURTH AMENDED
COMPLAINT
(2:16-cv-00920-MJP ) Page 5 of 7

III.

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ORDER OF THE COURT

It is so ordered.

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Dated this _23rd_ day of _March_, 2018.

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A

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Marsha J. Pechman
United States District Judge

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STIPULATED MOTION TO FILE FOURTH AMENDED
COMPLAINT
(2:16-cv-00920-MJP ) Page 6 of 7

CERTIFICATE OF SERVICE

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I hereby certify that on March 21, 2018, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF System. Notice of this filing will be sent to the parties
listed below by operation of the Court’s electronic filing system. Parties may access this filing
through the Court’s system.
PAMELA J. DEVET
KELLAN W. BYRNE

[e-mail]
[e-mail]

DATED at Wenatchee, Washington this 21st of March, 2018.

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By: s/CLAY M. GATENS
Clay M. Gatens, WSBA No. 34102
JEFFERS, DANIELSON, SONN & AYLWARD, P.S.
2600 Chester Kimm Road
P.O. Box 1688
Wenatchee, WA 98807-1688
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiffs

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STIPULATED MOTION TO FILE FOURTH AMENDED
COMPLAINT
(2:16-cv-00920-MJP ) Page 7 of 7