The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MAKAYLA MCCAIN, CIVIL ACTION
Plaintiff
VERSUS NO. 20-987
JP MORGAN MORTGAGE SECTION: “E” (3)
ACQUISITION CORP., ET AL.,
Defendants
ORDER AND REASONS
Before the Court is Plaintiff’s motion for leave to file third amended complaint.1
For the reasons that follow, Plaintiff’s motion is denied.
BACKGROUND
On March 23, 2020, Defendants removed Plaintiff’s civil action from the Twenty-
second Judicial District Court for the Parish of St. Tammany, State of Louisiana.2 At a
telephone status conference on September 3, 2020, Plaintiff, pro se at the time, requested
21 days to file an amended complaint in response to Defendants’ motion for judgment on
the pleadings, which the Court granted.3 On September 28, 2020, the Court granted
Plaintiff an additional 7 days to file an amended complaint.4 At a telephone status
conference on October 1, 2020, Plaintiff requested additional time to retain counsel and
to file a Second Amended Complaint, if counsel deemed it necessary.5 The Court granted
Plaintiff until October 15, 2020, to file her second amended complaint.6 On October 15,
1 R. Doc. 71.
2 R. Doc. 1.
3 R. Doc. 14.
4 R. Doc. 16. Plaintiff filed an amended complaint, however, it was marked deficient. R. Doc. 17.
5 R. Doc. 19.
6 R. Doc. 19.
2020, Plaintiff enrolled counsel.7 On October 16, 2020, the Court granted an extension of
30 days, or until November 16, 2020, for Plaintiff’s counsel to file a second amended
complaint.8 On November 16, 2020, the Court granted Plaintiff’s motion for a 7 day
extension to file a second amended complaint.9 In the order, the Court noted “[t]his is the
final extension the Court will grant Plaintiff to file a Second Amended Complaint.”10
Plaintiff filed her second amended complaint on November 23, 2020.11 In the
second amended complaint, Plaintiff alleges multiple causes of action against the
Defendants, JP Morgan Chase Bank (“Chase”), JP Morgan Mortgage Acquisition
Corporation (“JPMMAC”), Carrington Mortgage Services, LLC (“Carrington”).12 Plaintiff
brings causes of action for breach of contract, detrimental reliance, unfair trade practices
in violation of La. R.S. 51:1409, conversion, and unfair debt collection practices in
violation of the Fair Debt Collection Practices Act.13 In her second amended complaint,
Plaintiff sought damages for loss of her home; loss of personal income due to the negative
impact of Defendants’ conduct on Plaintiff’s credit history, which affects her ability to
return to employment as a loan officer; Plaintiff’s credit reputation; all non-pecuniary
damages, including for mental anguish, humiliation, embarrassment, and loss of
enjoyment of life; to restore Plaintiff’s credit; statutory damages as allowed by law; and
attorney’s fees.14 On December 14, 2020, Defendants JPMMAC and Carrington filed an
answer to Plaintiff’s second amended complaint and counterclaim.15 On February 21,
7 R. Doc. 23.
8 R. Doc. 25.
9 R. Doc. 31.
10 R. Doc. 31.
11 R. Doc. 33.
12 R. Doc. 33.
13 See R. Doc. 33.
14 R. Doc. 33 at ¶ 74.
15 R. Doc. 38.
2020, Defendants Carrington and JPMMAC filed a renewed motion for judgment on the
pleadings.16 On February 23, 2021, Plaintiff moved for leave to file her third amended
complaint.17 Defendants opposed Plaintiff’s motion to file her third amended complaint.18
Plaintiff moved to extend the submission date of Defendants’ motion for judgment on the
pleadings, which the Court granted.19
Defendants moved for relief from the scheduling order in light of Plaintiff’s second
amended complaint, which the Court granted.20 A new Scheduling Order was issued on
January 28, 2021.21 This Scheduling Order did not extend the date to amend pleadings.22
LAW AND ANALYSIS
Federal Rule of Civil Procedure 15(a) provides the Court should grant leave to
amend freely when justice so requires.23 Rule 15(a) “evinces a bias in favor of granting
leave to amend.”24 Although leave to amend is not “automatic,” the Court must possess a
“substantial reason” to deny leave to amend.25 The “substantial reason” standard is a high
bar that is only met when, for instance, a plaintiff has acted with “undue delay, bad faith
or dilatory motive” in seeking leave to amend, the plaintiff has made “repeated failures to
cure deficiencies by amendments previously allowed,” “undue prejudice [will result] to
the opposing party by virtue of allowance of the amendment,” or the amendment would
be completely futile.26
16 R. Doc. 40.
17 R. Doc. 71.
18 R. Doc. 75.
19 R. Doc. 43.
20 R. Doc. 50.
21 R. Doc. 62.
22 R. Doc. 62.
23 Fed. R. Civ. P. 15(a).
24 Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir.2005) (citation omitted).
25 Id.
26 Id.
Federal Rule of Civil Procedure 16(b) states scheduling orders “may be modified
only for good cause and with the judge’s consent.”27 “The good cause standard requires
the ‘party seeking relief to show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.’”28 In determining good cause, the Fifth
Circuit has delineated four factors to consider: “(1) the explanation for the failure to timely
move for leave to amend; (2) the importance of the amendment; (3) potential prejudice
in allowing the amendment; and (4) the availability of a continuance to cure such
prejudice.”29 “Rule 16(b) governs amendment of pleadings after a scheduling order
deadline has expired. Only upon the movant’s demonstration of good cause to modify the
scheduling order will the more liberal standard of Rule 15(a) apply to the district court’s
decision to grant or deny leave.”30
In this case, the deadline for filing amendments to pleadings, third-party actions,
cross-claims, and counterclaims was June 29, 2020.31 Because the deadline has passed,
the Court will apply the standard of 16(b) to determine whether there is good cause to
amend. Plaintiff argues good cause exists to modify the scheduling order.32 As to the first
factor, Plaintiff argues her new cause of action for breach of contract against all
defendants for damages to the subfloor of her home is based on a cost estimate for repair
work obtained after the filing of Plaintiff’s second amended complaint.33 Plaintiff also
argues three of her new causes of action against JPMMAC and Carrington for fraud,
27 Fed. R. Civ. P. 16(b).
28 S&W Enters, LLC v. Southtrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A Charles
Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990)).
29 Id. at 536.
30 Id.
31 R. Doc. 62.
32 R. Doc. 71-1 at 2.
33 R. Doc. 71-1 at 2.
alternatively for negligent misrepresentation, and for bad faith do not involve new
allegations of fact but merely represent new theories of recovery similar to allegations
made in Plaintiff’s second amended complaint.34 Counsel for Plaintiff argues he did not
recognize the additional causes of action existed until he performed legal research in
connection with Defendants’ motion for judgment on the pleadings. Finally, Plaintiff
argues her additional action arising from unjust enrichment was referenced in Plaintiff’s
opposition memorandum to Defendants’ motion for judgment on the pleadings and, as a
result, it not in reality a new cause of action.35
Defendants argue the first factor of the Rule 16 analysis, Plaintiff’s explanation for
her failure to timely amend, weighs heavily against granting Plaintiff leave to amend.36
Defendants argue Plaintiff bases her untimeliness on “a recently received estimate to
repair water damage to the property’s flooring, which occurred over 5 years ago, and her
attorney’s failure to appreciate additional causes of action for fraud, misrepresentation,
bad faith, and unjust enrichment until he analyzed JPMMAC and Carrington’s motion for
judgment on the pleadings.”37 Defendant points out that Plaintiff’s second amended
complaint contains a conversion claim against Chase based on its handling of insurance
proceeds.38 Defendants also point out that Plaintiff had notice of the damages to her floor
because, in her second amended complaint, Plaintiff alleged she “has lived with holes in
the floor” since the 2015 water damage occurred.39 In support of their arguments,
34 R. Doc. 71-1 at 2.
35 R. Doc. 71-1 at 2; see R. Doc. 52 at 18 (“In the event the Court determines that Plaintiff’s conversation
claim against Defendants has prescribed, Plaintiff respectfully prays that she be given an opportunity to
amend to assert a claim for unjust enrichment under La. C.C. Article 2298.”).
36 R. Doc. 75 at 4.
37 R. Doc. 75 at 4.
38 R. Doc. 75 at 4; see R. Doc. 33 at 16-17.
39 R. Doc. 75 at 4; see R. Doc. 33 at 4.
Defendants cite E.E.O.C. v. Service Temps Inc., in which the Fifth Circuit affirmed the
district court’s holding that the plaintiff failed to demonstrate good cause for the delay in
amending its answer, as required under Federal Rule of Civil Procedure 16(b), and
therefore denied the motion to amend.40 Plaintiff does not explain the five year gap
between the damage occurring and her getting a repair estimate. With regard to Plaintiff’s
attorney’s argument that he was unaware of additional causes of action until analyzing
Defendants’ motion for judgment on the pleadings, Defendants point out Plaintiff’s
counsel had access to Defendants’ first motion for judgment on the pleadings, in which
many of these same arguments were made, before the second amended complaint was
filed.41 The Court finds Plaintiff has not provided a reasonable explanation for her delay,
and this factor weighs against allowing amendment.
Next, Plaintiff argues the second factor, the importance of the amendment, weighs
in her favor. Plaintiff argues that, without leave to amend, “Plaintiff will be deprived of
the opportunity to recover damages based on newly developed facts and other distinct
damages for JPMMAC/Carrington’s potential fraudulent conduct, negligent
misrepresentation, and bad faith.”42 Defendant argues that, while it may be important to
Plaintiff to amend her complaint, “this is not a situation in which she would be left with
‘no remaining theory of recovery’ if the claims are not added, which lessens the claims’
potential importance.”43 The Court agrees with the Defendants that Plaintiff has alternate
40 679 F.3d 323, 328 (5th Cir. 2012).
41 R. Doc. 27-1 (Counsel stated that “considering the complex and multiple issues raised by defendants in
their Motion for Judgment on the Pleadings (R. Doc. 10), undersigned counsel respectfully submits that a
brief further extension is needed to obtain additional documents, to consult with plaintiff about these
documents and additional information, to evaluate all causes of action plaintiff may have against
defendant, and to prepare proper pleadings.”).
42 R. Doc. 71-1 at 3.
43 R. Doc. 71-1 at 5-6 (quoting Ward v. CNH America, L.L.C., Ind., 534 Fed. Appx. 240, 242 (5th Cir.
2013)).
theories of recovery available to her, and this factor does not weigh in favor of
amendment.
Finally, Plaintiff argues the third and fourth factors weigh in favor of the Plaintiff
because there is little prejudice to the Defendants, as discovery is still ongoing, and the
trial date has been moved to August.44 Defendants, on the other hand, argue they will be
prejudiced by amendment. Defendants cite U.S. ex rel. Bias v. Tangipahoa Parish School
Board, in which the Fifth Circuit held the third factor weighed against amendment when
“the parties would have been forced to ‘re-urge the same arguments’ presented in previous
dispositive motions.”45 In this case, JPMMAC and Carrington already have been required
to respond to the original and Plaintiff’s second amended complaint46 and have filed two
motions for judgment on the pleadings.47 Allowing amendment will force Defendants to
re-file their motion for judgment on the pleadings for a third time, causing increased costs
and further delay.48 The Court finds the third and fourth factors do not weigh in favor of
amendment.
Plaintiff has not shown that good cause exists to modify the scheduling order, and
therefore the more lenient standard of Federal Rule of Civil Procedure 15(a) standard does
not apply. Instead, the standard of Federal Rule of Civil Procedure 16(b)(4) applies, which
states that “[a] schedule may be modified only for good cause and with the judge’s
consent.” The Fifth Circuit has held that it is within the district court’s discretion to deny
leave to amend under Rule 16(b)(4) if it finds the plaintiff has not satisfied the first good-
44 R. Doc. 71-1 at 3.
45 816 F.3d 315, 328 (5th Cir. 2016).
46 R. Doc. 75 at 6. Plaintiff filed a first amended complaint on October 1, 2020, that was marked deficient.
47 R. Docs. 10, 40.
48 R. Doc. 75 at 6.
cause factor.49 Plaintiff has already been given many extension of time and has filed two
complaints. The Court finds good cause to modify the scheduling order, yet again, has not
been shown.
CONCLUSION
IT IS ORDERED that Plaintiffs motion for leave to file third amended
complaint5° is DENIED.
New Orleans, Louisiana, this 24th day of March, 2021.
SUSIE ve
UNITED STATES DISTRICT JUDGE
49 E.F.O.C. v. Serv. Temps Inc., 679 F.3d 323, 334 (5th Cir. 2012).
5° R, Doc. 71.