United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
case arises from protracted litigation surrounding the 1996
mortgage loan of pro se Plaintiffs Marilyn Elizabeth
Howard (“Howard”) and Roy Bostick
“Plaintiffs”). They bring over a dozen causes of
action against Defendants Ocwen Loan Servicing, LLC, U.S.
Bank N.A., as Trustee for Salomon Mortgage Loan Trust Series
2003-CB1, and Does 1 through 100 inclusive (collectively, the
“Defendants”). Now pending before this Court are
three Motions: Defendants’ Motion to Dismiss the
Complaint with Prejudice (ECF No. 7); Defendants’
Motion to Strike the Amended Complaint (ECF No. 21); and
Plaintiffs’ Response to that Motion, which they have
captioned as follows: “Objection to Defendants Motion
to Strike Plaintiffs 1st Amended Complaint for Accounting
Damages, Other Relief, Plaintiffs Motion to Strike Defendants
Dismissal of Plaintiffs Claims and Motion to Strike
Defendants Opposition for Extension of Time”
(hereinafter, “Plaintiffs’ Motion to
Strike”) (ECF No. 23.) The Court has reviewed the
parties’ submissions and finds that no hearing is
necessary. See Local Rule 105.6 (D. Md. 2018).
Plaintiffs’ Amended Complaint (ECF No. 20), construed
as a Motion for Leave to File an Amended Complaint, is
GRANTED and Defendants’ Motion to Strike the Amended
Complaint (ECF No. 21) is DENIED. The filing of the Amended
Complaint renders moot the pending Motion to Dismiss.
Accordingly, Defendants’ Motion to Dismiss with
Prejudice (ECF No. 7) is DENIED. Finally, Plaintiffs’
Response and Motion to Strike (ECF No. 23) is DENIED.
Original Complaint, Plaintiff asserted fourteen federal and
state law claims arising from the Defendants’ alleged
lending practices. Defendants responded with a 70-page
(including exhibits) Motion to Dismiss (ECF No. 7).
Subsequently, Plaintiff sought several extensions of time to
file a response or reply to the Defendants’ Motion.
Mindful of Plaintiffs’ pro se status and the
difficulties attendant to responding to such a voluminous
filing without the assistance of counsel, this Court
repeatedly granted such extensions. (ECF Nos. 12, 14, 17.) On
April 9, 2019, Plaintiffs filed a 94-page response to the
Motion. (ECF No. 19.) On April 29, 2019, she filed an Amended
Complaint. (ECF No. 20.) Defendants have moved to strike the
amended complaint as untimely under Rule 15(a)(1)(B) or,
alternatively, as futile.
Plaintiffs’ Motion for Leave to Amend (ECF No. 20) and
Defendants’ Motion to Strike (ECF No. 21).
15(a) governs the filing of amendments to pleadings. Under
this Rule, a party is permitted to amend its pleading within
“(A) 21 days after serving it, or (B) if the pleading
is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever
is earlier.” Following this twenty-one day time period,
“a party may amend its pleading only with the opposing
party’s written consent or the court’s
leave.” Fed.R.Civ.P. 15(a)(2). The rules specify that
leave to amend “shall be freely given when justice so
requires.” Fed.R.Civ.P. 15(a)(2). This “liberal
rule” reinforces the “federal policy in favor of
resolving cases on their merits instead of disposing them on
technicalities.” Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006). As noted by the United States Court
of Appeals for the Fourth Circuit, Rule 15(a) ensures that
the “plaintiff [is] given every opportunity to cure a
formal defect in his pleading.” Ostrzenski v.
Seigel, 177 F.3d 245, 252–53 (4th Cir.1999)
(quoting 5A Charles Allen Wright & Arthur R. Miller,
Federal Practice & Procedure § 1357 (2d ed.
1990)). A court may deny leave to file an amended complaint
only when the amendment “would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.”
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th
Cir.1986) (citing Foman v. Davis, 371 U.S. 178, 182
case, Plaintiffs’ Amended Complaint is untimely under
Rule 15(a)(1)(B), as it was filed more than twenty-one days
after Defendants served the pending Motion to Dismiss under
Rule 12(b)(6). Plaintiffs’ Amended Complaint was
untimely even under the forgiving filing extensions granted
by this Court. Nevertheless, in light of Plaintiffs’
pro se status, this Court construes the Amended
Complaint as a Motion for Leave to File an Amended Complaint.
The Amended Complaint appears to address some of the
arguments raised in Defendants’ Motion to Dismiss.
Whereas previously Defendants moved to dismiss Howard’s
claim on grounds that she could not advance causes of action
“on behalf of.” Roy Bostick (see ECF No.
7-1 at 9-10), the amended pleading now clarifies that both
Howard and Bostick are Plaintiffs in this action. The Amended
Complaint also brings several new causes of action. In their
Motion to Strike, Defendants generically claim that
Plaintiffs’ Amended Complaint is futile, but do not
supply additional argument on this point. Under these
circumstances, Plaintiffs are permitted to file an Amended
Complaint. Accordingly, Plaintiffs’ Amended Complaint
(ECF No. 20), construed as a Motion for Leave to File an
Amended Complaint, is GRANTED and Defendant’s Motion to
Strike the Amended Complaint (ECF No. 21) is DENIED.
Defendants’ Motion to Dismiss with Prejudice (ECF No.
filing of an Amended Complaint typically renders moot pending
motions to dismiss the original complaint. Verderamo v.
Mayor & City Council of Balt., 4 F.Supp.3d 722, 724
n.3 (D. Md. 2014). As an exception to this rule, an amendment
which addresses only limited issues raised in a prior Motion
to Dismiss does not moot pending motions filed against an
original complaint. See Riston v. Klausmair,
RDB-17-3766, 2018 WL 4333752, at *5 (D. Md. Sept. 11, 2018)
(holding that Amended Complaint only partially mooted pending
motion to dismiss because the amendment merely withdrew a
contested count and added a necessary party). In this case,
Plaintiffs’ Amended Complaint addresses issued raised
by the Defendants in their Motion to Dismiss and adds new
claims. Under these circumstances, the filing of
Plaintiffs’ Amended Complaint moots the Motion to
Dismiss. Accordingly, Defendants’ Motion to Dismiss
(ECF No. 7) is DENIED AS MOOT.
Plaintiffs’ Motion to Strike (ECF No. 23).
Plaintiffs petition this Court to strike Defendants Motion in
Opposition to Plaintiffs’ Third Motion for Enlargement
of Time to Respond to Defendants’ Motion to Dismiss
(ECF No. 18) and Defendant’s Motion to Strike (ECF No.
21). This Court may strike “an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter” from a pleading. Fed.R.Civ.P. 12(f). Such
motions are “generally viewed with disfavor.”
Waste Management Holdings, Inc. v. Gilmore, 252 F.3d
316, 347 (4th Cir. 2001). In this case, there is no basis for
striking any portion of the Defendants’ filings.
Accordingly, Plaintiff’s Motion to Strike (ECF No. 21)
these reasons, it is HEREBY ORDERED this 30th day of
September, 2019 that:
1. Plaintiffs’ Amended Complaint (ECF No. 20),
construed as a Motion for Leave to File an Amended Complaint,
2. Defendants’ Motion to Strike the First Amended
Complaint (ECF No. 21) is DENIED;
3. Defendants’ Motion to Dismiss the Complaint with
Prejudice (ECF No. 7) is ...