United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Karen Memhardt's
motion to modify the scheduling order, to allow for a belated
amendment of the complaint, and to continue the trial date.
ECF No. 66. For the reasons set forth below, the motion will
filed this action against Nationstar Mortgage, LLC
(“Nationstar”), and Bank of America, N.A.
(“BANA”), asserting violations of the Real Estate
Settlement Procedures Act, the Missouri Merchandising
Practices Act, and the Fair Debt Collection Practices Act, as
well as invasion of privacy, wrongful
foreclosure-anticipated, and breach of contract. ECF No. 20.
Plaintiff claims that in 1993, she purchased property at 530
Beacon Pointe Lane, Wildwood, Missouri (“subject
property”), and later conveyed the subject property to
her stepmother, Charlyne T. Skelton, who obtained a mortgage.
In 2009, Plaintiff's stepmother conveyed the subject
property back to Plaintiff.
current complaint, Plaintiff alleges, inter alia, that due to
the errors of BANA and/or its employees, Plaintiff was unable
to assume her stepmother's mortgage or modify it under
the Home Affordable Modification Program
(“HAMP”). The mortgage was sold to Nationstar in
2014, and Nationstar continued to deny Plaintiff the ability
to modify the mortgage, in part due to Plaintiff's name
not appearing on the loan. After Plaintiff became delinquent
on her payments, Nationstar sent Plaintiff a notice of
foreclosure, prompting Plaintiff to file this lawsuit.
Case Management Order (“CMO”) for this case set
the deadline for filing motions for amendment of pleadings as
August 1, 2017, and set forth a schedule for discovery and
trial. In accordance with the CMO, the parties have exchanged
written discovery and conducted depositions. The parties
participated in mediation on November 22, 2017, and discovery
was completed on May 15, 2018. On June 4, 2018, BANA filed a
motion for summary judgment. Shortly thereafter, on June 25,
2018, Plaintiff filed the motion for leave to amend the
complaint now before the Court.
does not attach a proposed amended complaint to her motion,
so it is not clear how many or what type of claims Plaintiff
wishes to add. However, Plaintiff asserts that while
preparing to defend against the motion for summary judgment,
she and her counsel realized that the signature of
Plaintiff's stepmother on the deed of trust was forged.
In addition, Plaintiff takes issue with the fact that a Texas
notary notarized the signature on the deed, when the notary
had no jurisdiction to do so. ECF Nos. 66, 67.
and Nationstar oppose the motion for leave to file an amended
complaint, arguing that allowing Plaintiff to amend would
cause undue delay and prejudice Defendants. Defendants argue
that the parties have incurred expenses conducting
depositions, completed discovery, and filed motions for
summary judgment. Defendants maintain that if Plaintiff adds
claims of fraud or forgery to the complaint, discovery would
have to be re-opened and an entirely new scheduling order
entered. Further, Defendants contend that Plaintiff has had
the documents with the allegedly fraudulent signature in her
possession since the inception of the lawsuit in April 2017,
and that her motion for leave to amend is simply a tactic to
avoid summary judgment.
15(a) of the Federal Rules of Civil Procedure governs motions
for leave to amend pleadings and generally supports the
liberal granting of such motions “when justice so
requires.” Fed.R.Civ.P. 15(a). Rule 16(b), however,
provides that scheduling orders limit the time for amending
pleadings and that a schedule established by such an order
“shall not be modified except upon a showing of good
cause.” Fed.R.Civ.P. 16(b).
well-settled in this Circuit that when a party seeks to amend
a pleading after the scheduling deadline for doing so, Rule
16(b)'s more narrow good cause standard applies, not Rule
15's liberal standard. Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 715-16 (8th Cir. 2008). In
Sherman, the Eighth Circuit explained,
The interplay between Rule 15(a) and Rule 16(b) is settled in
this circuit. In Popoalii [v. Correctional Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008)], we stated
that “[i]f a party files for leave to amend outside of
the court's scheduling order, the party must
show cause to modify the schedule.” 512 F.3d at 497
(citing Rule 16(b) (emphasis added)). Moreover, we said so in
the context of a discussion of the Rule 15 amendment
standard, unmistakably concluding that Rule 16(b)'s
good-cause standard governs when a party seeks leave to amend
a pleading outside of the time period established by a
scheduling order, not the more liberal standard of Rule
15(a). Id. Because Popoalii filed her motion to
amend her complaint five months after the scheduling deadline
for amending pleadings, “[u]nder [Rule] 16(b), Popoalii
needed to show cause in order to be given leave to
Sherman, 532 F.3d at 715-16 (8th Cir. 2008).
“[T]he application of Rule 16(b)'s good-cause
standard is not optional.” Id. at 716.
primary measure of good cause is the movant's diligence
in attempting to meet the order's requirements.”
Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006).
While the prejudice to the nonmovant resulting from
modification of the scheduling order may also be a relevant
factor, generally, the Court will not consider prejudice if
the movant has not been diligent in meeting the scheduling
order's deadlines. See Bradford v. DANA Corp.,
249 F.3d 807, 809 (8th Cir. 2001) (concluding that there was
“no need to explore beyond the first criterion,
[diligence, ] because the record clearly demonstrate[d] that
Bradford made only minimal efforts to satisfy the [scheduling
order's] requirements”). In short, “good