Miller et al v. Bank of America et al
Filing
19
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT. GRANTS as to 17 Motion to Amend/Correct. "Clerk instructed to filed Amended Complaint." and "Per order plaintiffs are DIRECTED to served the Amended Complaint on the Defendants. Signed by Senior Judge Frederick P. Stamp, Jr on 4/13/2011.(Copy counsel of record via CM/ECF) (jmm) Modified on 4/13/2011 corrected docket text and regenerated NEF.(jmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARENCE MILLER and
ROSALIE MILLER,
Plaintiffs,
v.
Civil Action No. 1:10CV213
(STAMP)
BANK OF AMERICA,
a Delaware corporation and
BAC HOME LOANS SERVICING, LP,
a qualified Texas limited partnership,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION FOR LEAVE
TO FILE AN AMENDED COMPLAINT
I.
Background
The plaintiffs, Clarence Miller and Rosalie Miller, filed a
complaint alleging breach of contract, negligence, and breach of
fiduciary duty.
The plaintiffs have now filed a motion for leave
to file an amended complaint seeking to add a declaratory judgment
count and to add one paragraph to the breach of contract claim.
defendant filed a response.
No
For the reasons set forth below, the
plaintiffs’ motion for leave to amend complaint their complaint is
granted.
II.
Federal
Rule
of
Applicable Law
Civil
Procedure
15(a)(1)(A)
states,
in
pertinent part, that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive
pleading.”
If a party seeks to amend its pleadings in all other
cases, it may only do so “with the opposing party’s written consent
or the court’s leave.
justice so requires.”
Rule
15(a)
The court should freely give leave when
Fed. R. Civ. P. 15(a)(2).
grants
the
district
court
broad
discretion
concerning motions to amend pleadings, and leave should be granted
absent some reason “such as undue delay, bad faith, or dilatory
motive
on
the
part
of
the
movant,
repeated
failure
to
cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment or
futility of the amendment.”
Foman v. Davis, 371 U.S. 178, 182
(1962); see also Ward Elec. Serv. v. First Commercial Bank, 819
F.2d 496, 497 (4th Cir. 1987); Gladhill v. Gen. Motors Corp., 743
F.2d 1049, 1052 (4th Cir. 1984).
III.
The
plaintiffs
seek
Discussion
to
amend
their
complaint
to
add
a
paragraph to the breach of contract claim and to add a declaratory
judgment count.
This amendment does not constitute an unfair
surprise or prejudice to the defendants.
complaint is not futile.
Further, the amended
In addition, no defendant filed a
response.
After a review of the record, this Court concludes that the
plaintiffs have not exhibited any undue delay, bad faith, or
dilatory motive.
Moreover, the prejudice to the defendants is not
significant as to prevent this Court from allowing the amendment,
and this Court cannot conclude that the plaintiffs’ amendment would
2
be futile.
Accordingly, this Court grants the plaintiffs’ motion
for leave to file an amended complaint.
IV.
Conclusion
For the reasons set forth above, the plaintiffs’ motion for
leave to file amended complaint is hereby GRANTED.
The Clerk is
DIRECTED to file the amended complaint, which was attached to the
plaintiffs’ motion for leave to file an amended complaint, Docket
No. 17. The plaintiffs are DIRECTED to serve the amended complaint
on the defendants.
The parties served with the amended complaint
shall make any defenses pursuant to Federal Rule of Civil Procedure
12 and any counterclaims or cross-claims pursuant to Federal Rule
of Civil Procedure 13.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
April 13, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?