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Ortiz v. Mortgage It

May 28, 2010

YADIRA ORTIZ, PLAINTIFF,
v.
MORTGAGE IT, INC., A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN CALIFORNIA; AMERICA'S SERVICE COMPANY, A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN CALIFORNIA; HOMEFINDER'S REALTY, A BUSINESS ENTITY UNKNOWN; DOES 1-30, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER

HAYES, Judge

The matter before the Court is Plaintiff's Motion for Leave to File Second Amended Complaint. (Doc. # 51).

BACKGROUND

Plaintiff initiated this action by filing her Complaint in the Superior Court for the State of California, County of San Diego on August 14, 2009. (Doc. # 1 at 7). On September 25, 2009, Defendant Mortgage It, Inc. ("Mortgage It") filed a Notice of Removal joined by Defendant America's Servicing Company ("ASC"). Id. Mortgage It and ASC stated this Court has jurisdiction pursuant to 28 U.S.C. § 1332. Id. at 2. Defendant Homefinders Realty was not served in the state court suit. (See Doc. # 2). On October 28, 2009, Plaintiff filed a First Amended Complaint ("FAC"). (Doc. # 14). On December 9, 2009, the Court denied Plaintiff's Application for a Temporary Restraining Order. (Doc. # 38). On March 9, 2010, the Court dismissed the FAC as to Defendants Mortgage It and ASC. (Doc. # 47). Also on March 9, 2010, the Court issued an Order to Show Cause which stated in part:

Federal Rule of Civil Procedure 4 requires that a summons and complaint be served "within 120 days after the filing of the complaint." Fed. R. Civ. P. 4(m). If a plaintiff fails to serve the summons and complaint within 120 days, the court may dismiss the action without prejudice after notice to the plaintiff. See id. This Order constitutes notice to Plaintiff that the Court will dismiss this action without prejudice as to Homefinders Realty on or after March 22, 2010, unless, no later than that date, Plaintiff files either: (1) proof of service of the summons and the complaint as to Defendant Homefinders Realty; or (2) a declaration under penalty of perjury showing good cause for failure to timely serve Homefinders Realty accompanied by a motion for leave to serve process outside of the 120 day period.

(Doc. # 48). Plaintiff did not file a response to the Order to Show Cause. On April 1, 2010, the Court dismissed the action as to Homefinders Realty ("Homefinders") without prejudice. (Doc. # 49).

On April 9, 2010, Mortgage It filed a Notice of Plaintiff's Failure to File Motion for Leave to Amend the First Amended Complaint by Court-Ordered Deadline. (Doc. # 50). The Notice states that the Plaintiff failed to file any motion for leave to amend by the Court's April 8, 2010 deadline and requests a dismissal with prejudice. Id. at 2. Also on April 9, 2010, Plaintiff filed her Motion for Leave to File Second Amended Complaint ("SAC"). (Doc. # 51). Plaintiff's proposed SAC is attached to the motion as Exhibit A. Id. at 4. Plaintiff filed the declaration of her attorney Jesse T. Farris. (Doc. # 53). Farris's declaration states he incorrectly calculated the deadline to file a motion for leave to amend pursuant to the Court's order and therefore missed the deadline by one day. Id. at 1. Mortgage It filed an opposition which contends the Court should deny Plaintiff's motion for failure to comply with the Court's previous order and because amendment would be futile. (Doc. # 55). ASC filed an opposition which contends there are several pleading defects in Plaintiff's proposed SAC. (Doc. # 56).

ANALYSIS

I. Mortgage It, Inc. and America's Service Company

Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend "be freely given when justice so requires." Fed. R. Civ. P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court offered several factors for district courts to consider in deciding whether to grant a motion to amend under Rule 15(a):

In the absence of any apparent or declared 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, futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given.'

Foman, 371 U.S. at 182; see also Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004) (citing Forman factors).

"Not all of the [Foman] factors merit equal weight. As this circuit and others have held, it is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). "The party opposing amendment bears the burden of showing prejudice." DCD Programs, 833 F.2d at 187. "Absent prejudice, or a strong showing of any of the remaining Foman ...


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