UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
October 18, 2010
DEANNA WALTERS, PLAINTIFF,
FIDELITY MORTGAGE OF CALIFORNIA, INC., CAL-WESTERN RECONVEYANCE CORP., JAMES YORK, OCWEN LOAN SERVICING LLC, HSBC BANK U.S.A., N.A., AND DOES 1-50, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
MEMORANDUM AND ORDER
This matter is before the court on plaintiff Deanna Walters' ("plaintiff") motion to preserve her right to amend her Racketeer Influenced and Corrupt Organizations Act ("RICO") claim at some later time after discovery commences. Defendants Ocwen Loan Servicing, LLC and HSBC Bank U.S.A., N.A.*fn1 (collectively, "defendants") oppose the motion.*fn2 For the reasons set forth below, plaintiff's motion is DENIED.
On May 5, 2010, plaintiff filed her second amended complaint ("SAC"). Plaintiff's SAC alleges numerous federal and state law claims, including a claim pursuant to RICO. (SAC, filed May 5, 2010 [Docket # 26].) In its August 4, 2010 memorandum and order, the court, inter alia, dismissed plaintiff's RICO claim with leave to amend, finding "plaintiff [did] not support her [RICO enterprise] theory with factual allegations sufficient to state a claim." (Order, filed August 4, 2010 [Docket # 42], 44.)
Plaintiff then filed a third amended complaint ("TAC") in order to cure, inter alia, the deficiencies in her RICO claim. (TAC, filed September 2, 2010 [Docket # 48].) However, plaintiff's TAC does not cure these deficiencies. Indeed, plaintiff concedes in the pleading that the alleged facts are insufficient to assert a cognizable RICO claim. (TAC ¶ 139.) Accordingly, because the facts alleged in support of plaintiff's RICO claim are still insufficient, plaintiff's RICO claim must be dismissed for the same reasons stated in the court's order of August 4, 2010.*fn3
Conceding her inability to state a RICO claim, plaintiff, contemporaneously with her TAC, filed the current motion. By this motion, plaintiff requests the court "preserve [her] right to amend her RICO claim" because the "type of factual information [needed] is not yet available to [p]laintiff, but will become available to [her] once discovery opens." (Pl.'s Mot. To Preserve Leave to Amend, filed September 2, 2010 [Docket # 49] ["MLA"], 1.) Further, plaintiff contends that "Rule 15 of the Federal Rules of Civil Procedure allows amendment of the pleadings at any time during litigation, up to and including during trial." (Id. at 2.)
While Rule 15(a)(2) provides that a party may amend its pleading with the court's leave, it does not provide that a party may bring a motion to preserve leave to amend at some future date. Fed. R. 15(a)(2). Accordingly, there is no authority under Rule 15 to grant plaintiff's request, and her motion is DENIED.
However, the court notes that nothing precludes plaintiff from bringing a motion for leave to amend at a later time if she discovers the requisite facts to state a RICO claim. At that juncture, Rule 16 will likely govern plaintiff's motion. While a scheduling order is not yet in place, one will be issued likely before discovery commences between the parties. "Once the court has entered a pretrial scheduling order pursuant to Rule 16, the standards of Rule 16 rather than Rule 15 govern amendment of the pleadings." See Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 607-608 (9th Cir. 1992); Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1232-33 (E.D. Cal. 1996). Accordingly, if plaintiff later moves for leave to amend, she may do so pursuant to Rule 16.
To amend, Rule 16 requires "a showing of good cause." Fed. R. Civ. P. 16(b). This requirement primarily considers the diligence of the party seeking the amendment. The pretrial scheduling order can only be modified "if it cannot reasonably be met despite the diligence of the party seeking the extension." Mammoth Recreations, 975 F.2d at 609. When evaluating whether a party was diligent, the Ninth Circuit has determined that "the focus of the inquiry is upon the moving party's reasons for modification. If that party was not diligent, the inquiry should end." Id. at 610; see also Gestetner Corp. V. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985).
Here, if plaintiff discovers facts during the course of discovery sufficient to state a RICO claim, she should promptly file a Rule 16 motion seeking leave to amend.*fn4 At this juncture, however, plaintiff's request to perverse her right to amend must be denied.
IT IS SO ORDERED.