United States District Court, D. Colorado
JOHN L. MCNEES, Plaintiff,
OCWEN LOAN SERVICING, LLC, a Delaware limited liability corporation, and DOES 1 through 100, inclusive, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion
to Amend [#35] (the “Motion”). Defendant
Ocwen Loan Servicing, LLC (“Defendant”) filed a
Response [#40] in opposition to the Motion on December 8,
2017, and Plaintiff, who proceeds as a pro se litigant, filed
a Reply [#41] on December 22, 2017. The Court has reviewed
the Motion, Response, Reply, the case file, and the
applicable law, and is fully advised in the premises. For the
reasons set forth below, the Court respectfully
RECOMMENDS that the Motion [#35] be
GRANTED in part and DENIED in
initiated this action by filing the Complaint [#1] on May 9,
2016. His claims pertain to a foreclosure of a mortgage loan
secured by Plaintiff's property at 12510 Newton Street,
Broomfield, Colorado 80020. Compl. [#1] ¶ 3.
Defendant filed a Motion to Dismiss [#15] on June 15, 2016.
On March 15, 2017, the District Judge entered an Order [#29]
granting Defendant's Motion to Dismiss [#15], yet also
granted Plaintiff leave to amend his complaint.
Order [#29] at 2. Plaintiff's First Amended
Complaint [#28] was accepted for filing on the same date.
Order [#30]. Then, Defendant filed another Motion to
Dismiss [#31], which remains pending. Plaintiff filed the
present Motion [#35] on November 8, 2017. Plaintiff
represents that he filed this Motion because he recently
became aware of new claims against Defendant. Motion
[#35] at 2. Defendant, however, argues that Plaintiff's
proposed Second Amended Complaint [#35] should not be
accepted for filing because: (1) Plaintiff acted with undue
delay by waiting almost seven months before filing his Motion
while offering no explanation why the delay is warranted; (2)
Plaintiff failed to confer with the undersigned defense
counsel and failed to attach a properly formatted amended
pleading, making his Motion procedurally defective pursuant
to D.C.COLO.LCivR 7.1(a) and D.C.COLO.LCivR 15.1(b); and (3)
Plaintiff's added claims are subject to dismissal and
therefore futile. Response [#40] at 3-10.
Court has discretion to grant a party leave to amend its
pleadings. See Foman v. Davis, 371 U.S. 178, 182
(1962). Specifically, the Court should grant leave to amend
“freely . . . when justice so requires.”
Fed.R.Civ.P. 15(a)(2). Generally, leave should be permitted
unless the moving party unduly delayed or failed to cure, the
opposing party would be unduly prejudiced, or the proposed
amendment would be futile. Foman, 371 U.S. at 182.
Court must construe the filings of a pro se litigant
liberally. See Haines v. Kerner, 404 U.S. 594,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir.1991). However, the Court should not be the pro se
litigant's advocate, nor should the Court “supply
additional factual allegations to round out [the pro se
litigant's] complaint or construct a legal theory on [his
or her] behalf.” Whitney v. New Mexico, 113
F.3d 1170, 1173-74 (10th Cir.1997) (citing Hall, 935
F.2d at 1110). In addition, pro se litigants must follow the
same procedural rules that govern other litigants.
Nielson v. Price, 17 F.3d 1276, 1277 (10th
Undue Delay and Procedural Deficiencies
the Court considers whether Plaintiff acted with undue delay.
“In determining whether a motion to amend is unduly
delayed, the Court generally looks to the Scheduling
Order.” Penterra Energy Partners, LLC v. McMahon
Energy Partners, LP, No. 13-cv-00261-WYD-MEH, 2013 WL
3242834, at *1 (D. Colo. June 25, 2013). Here, no Scheduling
Order is in place, so a deadline to amend pleadings is not
currently set. Therefore, although several months have passed
since Plaintiff's First Amended Complaint [#28] was
filed, the Court finds that the Motion [#35] is timely and
that Plaintiff has not acted with undue delay.
the Court addresses Defendant's argument that the Court
should deny the Motion [#35] for procedural deficiencies
pursuant to D.C.COLO.LCivR 7.1(a) and D.C.COLO.LCivR 15.1(b).
Response [#40] at 5. Specifically, Defendant argues
that in the absence of a redlined amended complaint it
“has been forced to expend additional resources to
respond to the Motion.” Response [#40] at 4.
Taking into consideration Plaintiff's pro se status, the
duration of this matter, and the interest of efficiency, the
Court concludes that Defendant's argument is
unpersuasive. See Hall, 935 F.2d at 1110. In
particular, although Plaintiff may not have conferred with
Defendant about his request to file an amended complaint,
Defendant has had an opportunity to respond. Additionally,
the Court recognizes that Defendant may have expended
additional resources in the absence of a redline version, but
requiring Plaintiff to re-file a new motion to amend the
pleadings with attachments now would necessitate that more
resources be expended in order for the parties to re-brief
the issues. Thus, the Court is not inclined to require a
redline version of Plaintiff's proposed Second Amended
Complaint at this point, as doing so would be inefficient and
cause further delay.
the Court addresses Defendant's futility argument.
Defendant argues that Plaintiff's new and existing claims
are futile because they would not survive dismissal.
Response [#40] at 4-7. An amendment is futile if it
would not survive a motion to dismiss under Fed.R.Civ.P.
12(b)(6). Innovatier, Inc. v. CardXX, Inc., No.
08-cv-00273-PAB-KLM, 2010 WL 148285, at *2 (D. Colo. Jan. 8,
2010) (citing Bradley v. Val-Mejias, 379 F.3d 892,
901 (10th Cir. 2004)). “In ascertaining whether
plaintiff's proposed amended complaint is likely to
survive a motion to dismiss, the court must construe the
complaint in the light most favorable to plaintiff, and the
allegations in the complaint must be accepted as true.”
Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan.
1994). Moreover, “[a]ny ambiguities must be resolved in
favor of plaintiff, giving him the benefit of every
reasonable inference drawn from the well-pleaded facts and
allegations in his complaint.” Id. (quotations
Colorado Consumer Protection Act Claim
in his proposed Second Amended Complaint [#35], adds a new
claim alleging that Defendant made misrepresentations and
deceptive omissions, which violate the Colorado Consumer
Protection Act (“CCPA”). Motion [#35] at
9-12. There are five elements a plaintiff must show to prove
a viable cause of action under the CCPA: “(1) that the
defendant engaged in an unfair or deceptive trade practice;
(2) that the challenged practice occurred in the course of
defendant's business, vocation, or occupation; (3) that
it significantly impacts the public as actual or potential
consumers of the defendant's goods, services, or
property; (4) that the plaintiff suffered injury in fact to a
legally protected interest; and (5) that the challenged
practice caused the plaintiff's injury.” Rhino