United States District Court, S.D. Indiana, Indianapolis Division
L. Pryor United States Magistrate Judge
matter comes before the Court on Plaintiff's Motion for
Leave to File Third Amended Complaint and Memorandum of Law
in Support (Dkt. 61). For the reasons set forth below, this
Court, having fully reviewed the matter, hereby
GRANTS IN PART and DENIES IN
PART said Motion.
initiated this action against Defendants Ocwen Loan Servicing
LLC, Manley Deas Kochalski, LLC, and Bank of New York Mellon
for allegedly violating numerous federal statutes including
the Real Estate Settlement Procedures Act, Truth in Lending
Act, Fair Debt Collection Practices Act, Telephone Consumer
Protection Act, Fair Credit Reporting Act, and other state
law claims. On July 16, 2019, the Plaintiff filed this motion
for leave to file a third amended complaint. The parties'
Case Management Plan set a deadline of June 7, 2019 for
amending pleadings. [Dkt. 41]. In the proposed amended
complaint, the Plaintiff is seeking to add “several
mistakenly omitted allegations regarding the fourth Notice of
Error letter sent by Freeman to Ocwen” and “to
correct the ordering of the Exhibits attached to the Second
Amended Complaint. [Dkt. 61].
response, the Defendants do not object to the Plaintiff
correcting the ordering of the exhibits attached to the
Second Amended Complaint. Accordingly, the Court
GRANTS Plaintiff's request for leave to
correct the ordering of Exhibits attached to the Second
Defendants oppose, however, Plaintiff's request for leave
to allow her to add new allegations to the proposed Third
Amended Complaint almost a year and a half after the case was
filed, and a month after the deadline for amendments has
passed. The Court will now consider this argument.
Rule 15 of the Federal Rules of Civil Procedure governs
amendments of pleadings, noting that courts “should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). This Rule, however, is somewhat
restricted when a scheduling order has been entered.
Alioto v. Town of Libson, 651 F.3d 715, 719 (7th
amend a pleading after the scheduling order deadline, the
heightened good cause standard of Rule 16 is applied before
considering whether the requirements of Rule 15(a)(2) are
met. Alioto, 651 f.3d at 719 (citing Federal Rule of
Civil Procedure 16(b)(4)). Rule 16's good cause standard
primarily considers the diligence of the party seeking the
amendment to determine whether good cause has been
established. Trustmark Ins. Co. v. General & Cologne
Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005).
Plaintiff's motion for leave was filed approximately one
month after the deadline set forth in the Scheduling Order.
[Dkt. 61]. The Plaintiff filed her original complaint on
December 6, 2018. Since then, Plaintiff has filed two motions
to amend, both of which were unopposed and granted by the
Court. Plaintiff's First Amended Complaint was filed
March 14, 2019. [Dkt. 24]. Plaintiff's second motion for
leave to file an amended complaint was filed on June 7, 2019,
which was the deadline for filing amended pleadings. [Dkt.
53]. Plaintiff's present motion for leave to amend her
complaint was filed a little over a month later, on July 16,
2019. [Dkt. 61].
maintains there is no justifying reason pursuant to Rule 15
of the Federal Rules of Civil Procedure to deny her motion
for leave. Plaintiff maintains that the Defendants would not
be unduly prejudiced, and justice would be served by this
amendment. Rule 15, however, is not the starting point for
considering this motion. Prior to considering the standard
set forth in Rule 15, the Plaintiff must satisfy the
heightened good cause standard of Rule 16, and demonstrate
her diligence in seeking the amendment.
Defendants maintain that the Plaintiff is unable to meet this
burden, and the proposed amendment is instead the product of
undue delay, bad faith, and dilatory motive. Specifically,
the Defendants argue that the Plaintiff has failed to
demonstrate any reasonable justification for modifying the
Court's Scheduling Order to permit this motion for leave
to amend to add allegations regarding Plaintiff's fourth
Notice of Error Letter (“NOE No. 4”).
mailed her NOE No.4 to Defendants on January 11, 2019. [Dkt.
71]. The Defendants responded to the NOE No. 4 on March 21,
2019, approximately two and one-half months before the
deadline to amend. Plaintiff filed her motion to file a
Second Amended Complaint on the deadline, but did not include
any allegations related to the NOE No. 4. The Plaintiff's
briefing is void of any arguments that demonstrate due
diligence to file this amendment before June 7, 2019, the
deadline set forth in the Case Management Plan. [Dkt. ...