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Bund v. Safeguard Properties LLC

United States District Court, W.D. Washington

March 21, 2018

JOHN R. BUND II, personally, as Executor of the Estate of Richard C. Bund, deceased, and on behalf of others similarly situated, Plaintiffs,
v.
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

          LEE SMART, P.S., INC., PAMELA J. DEVET, Pamela J. DeVet, Kellan W. Byrne, Attorneys for Defendant Safeguard Properties Management, LLC

          STIPULATED MOTION TO FILE FOURTH AMENDED COMPLAINT

          MARSHA J. PECHMAN UNITED STATES DISTRICT JUDGE

         I. STIPULATION

         Pursuant 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.

         Although 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.

         II. PLAINTIFFS' STATEMENT ON RELIEF FROM DEADLINE

         Defendant does not join in Part II.

         On 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 Although issued long before the recent factual and legal developments in this case, and although it has been largely superseded by Dkt.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.

         # 204) 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.

         There 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.

         Class 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.

         And 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.

         In its 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 ...


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