Clark County Bancorporation v. Federal Deposit Insurance Corporation et al

Filing 76

ORDER by Judge Benjamin H. Settle denying 71 Motion to Strike; Motions terminated: 65 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM re [Dkt 59] Second Amended Complaint filed by Federal Deposit Insurance Corporation-Receiver. FDIC shall respond to complaint by 10/22/2015. (TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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5 CLARK COUNTY
BANCORPORATION,
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CASE NO. C14-5816 BHS
Plaintiff,

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v.
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ORDER DENYING
DEFENDANT’S MOTION TO
STRIKE

FEDERAL DEPOSIT INSURANCE
9 CORPORATION,
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Defendant.

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This matter comes before the Court on Defendant Federal Deposit Insurance

13 Corporation-Receiver’s (“FDIC-R”) motion to strike third amended complaint (Dkt. 71).
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On June 16, 2015, the Court granted FDIC-R’s motion to dismiss and granted

15 Plaintiff Clark County Bancorporation’s (“CCB”) leave to amend its complaint. Dkt. 56.
16 On June 26, 2015, CCB filed a Second Amended Complaint. Dkt. 59. On July 24, 2015,
17 FDIC-R filed a motion to dismiss. Dkt. 65. On August 12, 2015, CCB filed a Third
18 Amended Complaint. Dkt. 70. On August 21, 2015, FDIC-R filed the instant motion to
19 strike. Dkt. 71. On September 3, 2015, CCB responded. Dkt. 73. On September 4,
20 2015, FDIC-R replied. Dkt. 74.
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“A party may amend its pleading once as a matter of course . . . 21 days after

22 service of a motion under Rule 12(b) . . . .” Fed. R. Civ. P. 15(a)(1)(B).

ORDER - 1

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In this case, the parties dispute whether this rule allows CCB to file an amended

2 complaint as a matter of course in response to each Rule 12(b) motion. The parties fail to
3 cite, and the Court is unaware of, any binding authority on the question presented. The
4 Advisor’s Committee Notes, however, provide as follows:
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the right to amend once as a matter of course . . . will force the pleader to
consider carefully and promptly the wisdom of amending to meet the
arguments in the motion. A responsive amendment may avoid the need to
decide the motion or reduce the number of issues to be decided, and will
expedite determination of issues that otherwise might be raised seriatim. It
also should advance other pretrial proceedings.

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Fed. R. Civ. P. 15 advisory’s committee notes to 2009 amendment. As applied to this
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case, the Court finds that CCB filed the complaint to either avoid deciding the motion to
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dismiss or to streamline issues. In fact, the Third Amended Complaint includes
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additional allegations regarding the Tax Allocation Agreement, which was the subject of
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many of CCB’s arguments in opposition to dismissal. See Dkt. 46. Therefore, the Court
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declines to strike CCB’s complaint and DENIES FDIC’s motion. FDIC shall respond to
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the complaint no later than October 22, 2015. The Clerk shall remove FDIC-R’s motion
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to dismiss (Dkt. 65) from the Court’s calendar.
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IT IS SO ORDERED.
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Dated this 1st day of October, 2015.
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A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 2