United States District Court, W.D. Washington
JOHN R. BUND II, personally, as Executor of the Estate of Richard C. Bund, deceased, and on behalf of others similarly situated, Plaintiffs,
SAFEGUARD PROPERTIES, LLC, a Delaware corporation Defendant.
JEFFERS, DANIELSON, SONN & AYLWARD, P.S., CLAY M. GATENS,
JEFFERS, DANIELSON, SONN & AYLWARD, P.S., Michael D.
Daudt, DAUDT LAW PLLC, Beth E. Terrell, Blythe H. Chandler,
TERRELL, MARSHALL LAW GROUP PLLC, Attorneys for Plaintiffs
SMART, P.S., INC., PAMELA J. DEVET, Pamela J. DeVet, Kellan
W. Byrne, Attorneys for Defendant Safeguard Properties
STIPULATED MOTION TO FILE FOURTH AMENDED
J. PECHMAN UNITED STATES DISTRICT JUDGE
to Federal Rule of Civil Procedure 15(a)(2) and LCR 15,
Defendant consents to Plaintiff amending his Third Amended
Complaint, Dkt. # 82, in substantially the form of the
attached redlined document. By providing consent, Defendant
does not agree that Plaintiff's proposed additional
claims have merit or that Plaintiff's proposed additional
class representatives and additional claims satisfy the
requirement of Federal Rule of Civil Procedure 23.
Defendant does not adopt Plaintiffs' position on Local
Rule and Federal Rule of Civil Procedure 16, set forth in
Part II, below, Defendant does not oppose Plaintiffs'
request for modification of the deadline to amend pleadings.
PLAINTIFFS' STATEMENT ON RELIEF FROM DEADLINE
does not join in Part II.
February 16, 2018, this Court issued its Order Setting Trial
Date and Related Dates. Dkt. # 220. The order does not
provide a deadline for amending pleadings or joining parties.
Id. Although issued long before the recent factual
and legal developments in this case, and although it has been
largely superseded by Dkt. # 220, this Court's September
6, 2017 scheduling order appears to remain partially in
effect, and provides the operative deadline. Dkt. # 142
(setting October 16, 2017 as the deadline to join additional
parties and file amended pleadings). Plaintiff seeks to amend
his complaint after the October 2017 deadline. Dkt. # 142.
Federal Rule of Civil Procedure 16(b)(4) provides that a
scheduling order may be modified only with the Judge's
consent and for “good cause.” The parties
therefore jointly request the Court find good cause to modify
Dkt. # 142 and grant Plaintiff leave to amend his Third
Amended Complaint in order to (1) remove the conversion claim
in light of this Court's Order on Motion to Certify (Dkt.
# 204) and consistent with the stipulated motion to dismiss
John Bund's conversion claim (Dkt. ## 212, 218); (2)
remove allegations relating to Mandy and Garett Hanousek,
consistent with this Court's order granting
Safeguard's Motion for Summary Judgment Dismissal (Dkt. #
203); (3) remove allegations relating to Crystal Haynes, in
light of this Court's Order on Motion to Certify (Dkt.
and consistent with the stipulated motion to dismiss Crystal
Haynes claims without prejudice (Dkt. ## 211, 217); (4)
revise and include allegations pertaining to two additional
negligence claims in light of discovery recently conducted by
the parties; and (5) join two new representative plaintiffs
only recently identified by Plaintiff's counsel.
is good cause to modify this Court's scheduling order
(Dkt. # 142). At the outset, the parties note that trial in
this matter was recently reset for more than fourteen months
after this stipulation is filed. Dkt. # 220. Discovery
remains ongoing and the deadline to complete discovery is
January 11, 2019. Id. The deadline to file final
dispositive motions is soon after: January 22, 2019.
Id. In short, the parties have more than ten
months-ample time to address this amendment via discovery
and/or dispositive briefing. Safeguard will suffer no undue
prejudice from this amendment.
members, on the other hand, may suffer prejudice if this
amendment is denied. The Court has ordered the parties to
file briefing addressing John Bund's standing in light of
his status as an absent class member of the class certified
in Jordan v. Nationstar Mortgage, No.
2:14-CV-0175-TOR. See Dkt. # 221. The new
representative plaintiffs identified in Plaintiff's
proposed Fourth Amended Complaint are not members of the
Jordan class or any similar certified class. Good
cause exists to join these new representative plaintiffs to
avoid any possible prejudice to certified class members'
claims if Mr. Bund-the current sole representative of the
class-is dismissed as a class representative.
finally, the Rule 16(b)(4) “‘good cause
standard' primarily considers the diligence of the party
seeking amendment.” Johnson v. Mammoth
Recreations, 975 F.2d 604, 609 (9th Cir. 1992).
Plaintiff has demonstrated more than adequate diligence. And
his proposed amendment addresses recent factual and legal
developments in this case by (1) removing allegations and
parties that this Court dismissed and/or declined to certify
in recent rulings, and (2) adding claims and parties recently
discovered as a result of formal discovery.
recent Order on Certification, this Court declined to certify
Plaintiff's conversion sub-class. Plaintiff believes that
this Court's Order also suggests that Safeguard's
vendors are agents rather than independent contractors.
Plaintiff therefore believes that, when combined with this
Court's order, Safeguard's representation that it
never orders its vendors to remove personal property from
homes prior to the completion of foreclosure, as well as
information and documents Safeguard produced in formal
discovery on February 27, 2018, March 13, 2018, and in its
30(b)(6) deposition on March 8, 2018, support additional
claims for negligent trespass and negligent supervision.
Plaintiff very recently learned of Scott and Noel James, who
have only recently agreed to serve as class ...