United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs Motion for Leave of
Court to File Second Amended Complaint. (ECF No. 35)
Defendant Bank of America, N.A., as Successor by Merger to
BAC Home Loans Servicing, L.P., opposes the motion. Upon
review of the motion and related memoranda, the Court will
grant Plaintiffs motion.
Court set forth the background of this case in its Memorandum
and Order of January 18, 2018. (ECF No. 34 pp. 1-3) Those
facts are incorporated herein. In granting, in part, and
denying, in part, Defendant's motion to dismiss, the
Court ordered the Plaintiff to amend his First Amended
Complaint to state detailed information regarding
Defendant's allegedly fraudulent acts in support of
Plaintiff s MMPA claim. (ECF No. 34 pp. 7-10) Plaintiff then
filed a motion for leave to file a second amended complaint,
seeking to add supplementary facts in support of his claim
for wrongful foreclosure and a new claim to quiet title
against Defendant and the current title holders of record,
Jay Scott and Kimberly Ann Hoskins (collectively
"Hoskins"). Defendant opposes the motion, asserting
that the Court should deny Plaintiffs motion for leave to
amend because such amendment would be futile and prejudicial
of the Federal Rules of Civil Procedure provides that a party
may amend a pleading once as a matter of course within 21
days after serving the pleading or, in all other cases, with
written consent of the opposing party or by leave of court.
Fed.R.Civ.P. 15(a). "The court should freely give leave
when justice so requires." Fed.R.Civ.P. 15(a)(2).
"A district court appropriately denies the movant leave
to amend if 'there are compelling reasons such as undue
delay, bad faith, or dilatory motive, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of the
amendment.'" Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 715 (8th Cir. 2008) (quoting
Moses.com Sec, Inc. v. Comprehensive Software
Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005)).
Plaintiff contends that his Second Amended Complaint complies
with the Court's order by pleading only an equitable
claim for wrongful foreclosure but adds facts in support of
his claim with respect to the publication of notice.
Plaintiff also asserts that his MMPA claim now contains
sufficient details under the heightened pleading standard.
Finally, Plaintiff states that a quiet title claim against
the Hoskins is appropriate. Defendant, on the other hand,
asserts that the proposed amended complaint could not
withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6).
Court finds that leave to file a Second Amended Complaint is
warranted. Defendant elected to file a motion to dismiss in
lieu of an Answer. Therefore, the Court has not yet held a
Rule 16 conference or entered a Case Management Order with
discovery deadlines pursuant to Fed.R.Civ.P. 16. Allowing
Plaintiff file an amended complaint would not prejudice
Defendant also argues that the Court should deny Plaintiffs
motion to amend because such amendment is futile. "The
standard for dismissing a motion to amend because of futility
is stringent. ' [A] party's motion to amend should be
dismissed on the merits only if it asserts clearly frivolous
claims or defenses. Likelihood of success on the new claim is
no basis for denying an amendment unless the claim asserted
therein is clearly frivolous.'" Coller v.
Doucette, No. 4:09CV780 AGF, 2010 WL 319652, at *1 (E.D.
Mo. Jan. 20, 2010) (quoting Gamma-10 Plastics, Inc. v.
Am. President Lines, Ltd., 32 F.3d 1244, 1255-56 (8th
Cir. 1994)). Here, the Court finds that at the early stages
of litigation, Plaintiff alleges facts that could support a
claim for equitable wrongful foreclosure, violation of the
MMPA, and quiet title. Id.
also argues that the Court should deny Plaintiffs motion to
amend because he seeks to add non-diverse defendants.
"When an action is removed from state to federal court,
and 'after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter
jurisdiction, the court may deny joinder, or permit joinder
and remand the action to the State court.'"
Bailey v. Bayer CropScience L.P., 563 F.3d 302,
307-08 (8th Cir. 2009) (quoting 28 U.S.C. § 1447(e)).
"In determining whether to permit the amendment, the
Court considers the following factors: ' 1) the extent to
which the joinder of the nondiverse party is sought to defeat
federal jurisdiction, 2) whether [the] plaintiff has been
dilatory in asking for amendment, and 3) whether [the]
plaintiff will be significantly injured if amendment is not
allowed.'" Johnson v. Travelers Home &
Marine Ins. Co., No. 4:10CV520 JCH, 2010 WL 1945575, at
*1 (E.D. Mo. May 12, 2010) (quoting Bailey, 563 F.3d
at 309 (internal quotations and citations omitted)).
Court acknowledges that Plaintiff knew of the Hoskins at the
time of filing the state court petition and later voluntarily
dismissed them as a party, leading to removal. However, in
addressing Defendant's motion to dismiss, the Court
denied the motion with respect to the equitable wrongful
foreclosure claim. (ECF No. 34, pp. 5-7) According to
Plaintiff, the quiet title action is now necessary in light
of the Court's ruling that Plaintiff has stated an
equitable claim for wrongful foreclosure and may seek to void
the sale of the property. While adding a previously known
non-diverse defendant after the case is removed strongly
indicates a purpose to defeat federal jurisdiction, the Court
does not find such improper motive in this case. See
Johnson v. Texas Roadhouse Holdings, LLC, No. 4:10-CV-36
CDP, 2010 WL 2978085, at *2 (E.D. Mo. July 23, 2010)
(addressing facts that tended to show improper motive).
Further, the Court finds that Plaintiff could be injured if
unable to fully pursue the recovery of his property.
IT IS HEREBY ORDERED that Plaintiffs Motion
for Leave of Court to File Second Amended Complaint (ECF No.
35) is GRANTED. The Clerk of the Court shall file Attachment
1 to the motion (ECF No. 35-1) as Plaintiffs Second Amended
IS FURTHER ORDERED that Plaintiff shall file an
appropriate motion to remand no later than May 1, 2018.
IS FINALLY ORDERED that Plaintiffs Motion for Leave
of Court to File Additional Memorandum ...