United States District Court, D. Arizona
ORDER
DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
Before
the Court are Defendants' motions to strike (Docs. 28,
34, 35, 43) and Plaintiff's motion to amend complaint
(Docs. 61, 62, 65, 66, 68, 74-76). For the following reasons,
the Court will strike Plaintiff's amended complaint and
deny Plaintiff's motion to amend complaint.
I.
Background
Plaintiff
commenced this action pro se[1] on February 8, 2019, by filing a
complaint in the Maricopa County Superior Court. (Doc. 1-3.)
After filing the complaint, Plaintiff filed multiple
additional documents that amended or supplemented the
complaint. (Doc. 1-5.) The action was removed to this Court
on May 16, 2019. (Doc. 1.) Defendant Bank of America and
Defendant Christina Harper filed motions to dismiss on May
23, 2019, and Defendant First American Financial Corporation
filed a motion to dismiss on May 28, 2019. (Docs. 10, 16,
21.) Plaintiff filed an amended complaint without leave of
Court on May 28, 2019. (Doc. 19.) On May 31, 2019, Defendants
Caliber Home Loans Inc., Harper, LSF9 Master Participation
Trust, and U.S. Bank Trust NA filed a motion to strike
Plaintiff's motion for findings of fact and conclusions
of law (Doc. 1-5 at 71), second supplement to complaint
(Id. at 56), third supplement to complaint
(Id. at 66), and amended complaint (Doc.
19).[2]
(Doc. 28.) Similarly, Bank of America NA filed a motion to
strike Plaintiff's amended complaint (Doc. 19) on June
11, 2019. (Doc. 35.) On July 15, 2019, Plaintiff filed a
motion to amend his amended complaint. (Doc. 61.) The motions
are now ripe.
II.
Legal Standard
A case
originally brought in state court but removed to federal
court “must proceed as if it had been brought in
federal court originally.” Cwiak v. City of
Phoenix, No. CV-09-1858-PHX-MHM, 2010 WL 1742531, at *2
(D. Ariz. Apr. 29, 2010). A plaintiff may amend his complaint
only once as a matter of course either within 21 days of
service or within 21 days after service of a motion to
dismiss. Fed.R.Civ.P. 15(a). Rule 15(b) similarly provides
that, after this period, a party may amend its pleading only
with the opposing parties' consent or the court's
permission. Fed.R.Civ.P. 15(b). When a plaintiff moves to
amend, the court looks to five factors when considering the
propriety of granting the motion: “(1) bad faith, (2)
undue delay, (3) prejudice to the opposing party, (4)
futility of amendment; and (5) whether plaintiff has
previously amended his complaint.” Allen v. City of
Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (citing
Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149,
1160 (9th Cir. 1989)).
III.
Analysis
Turning
first to Defendants' motions to strike (Docs. 28, 25),
Plaintiff filed multiple amendments to his complaint prior to
removal and, therefore, was required to obtain
Defendants' consent or the Court's permission prior
to filing his latest amendment. Plaintiff, however, neither
conferred with Defendants[3] nor sought the Court's permission.
(Doc. 19.) Accordingly, the Court will strike Plaintiff's
amended complaint. See Cwiak, 2010 WL 1742531, at *2
(striking second amended complaint for failure to obtain
Defendants' consent or court's permission even though
it was the first amendment filed after removal).
Turning
next to Plaintiff's motion for leave to amend, after
considering the five factors relevant to determining whether
an amended pleading should be permitted-(1) bad faith, (2)
undue delay, (3) prejudice to the opposing party, (4)
futility of amendment, and (5) whether the plaintiff has
previously amended his complaint-the Court denies
Plaintiff's motion. Plaintiff already filed at least
three amendments prior to removal. Further, he repeatedly has
sought to amend since removal, even though discovery has not
begun. (Docs. 19, 61.) The unearthing of new, relevant
information is not motivating Plaintiff to amend; rather, the
amendments appear to be spurred by Defendants' filings.
See Jackson v. Bank of Haw., 902 F.2d 1385, 1388
(9th Cir. 1990) (“Relevant to evaluating the delay
issue is whether the moving party knew or should have known
the facts and theories raised by the amendment in the
original pleading.”). Allowing Plaintiff to continue to
amend would convert Plaintiff's complaint into a moving
target, unduly prejudicing Defendants, who already have
expended significant time and resources in order to
understand and respond to Plaintiff's evolving
allegations. See Safety Dynamics Inc. v. Gen. Star Indem.
Co., No. CV-09-00695-TUC-CKJ (DTF), 2014 WL 11281291, at
*4 (D. Ariz. Mar. 5, 2014) (citing Eminence Capital, LLC
v. Aspeon, Inc, , 316 F.3d 1048, 1052 (9th Cir. 2003))
(“Prejudice to the opposing party is the most important
of [the] factors” in determining whether to permit or
deny leave to amend). Accordingly, IT IS
ORDERED that Defendants' motion to strike (Doc.
28) is GRANTED IN PART, Defendant Bank of
America's motion to strike (Doc. 35) is
GRANTED, and Plaintiff's motion to amend
(Doc. 61) is DENIED.
IT
IS FURTHER ORDERED that the Clerk of Court is
directed to STRIKE Plaintiffs amended
complaint (Doc. 19) from the record.
---------
Notes:
[1] Plaintiff has expressed that he
objects and takes offense to the term “pro se.”
(Docs. 9 at 1, 34 at 1-2, 61 at 2.) The term pro se is not
disparaging and does not relate to Plaintiff's military
service. Rather, it merely refers to Plaintiff's status
as an individual proceeding without an attorney.
[2] The Court, in its discretion and
noting that motions to strike are generally disfavored, will
deny Defendants' motion to strike (Doc. 28) insofar as it
seeks to strike documents filed before the matter was
removed. Ader v. SimonMed Imaging Inc., 324
F.Supp.3d 1045, 1050 (D. Ariz. 2018); Sunburst Minerals,
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