Hyatt v. Experian Information Solutions Incorporated ( 2024 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jamel Hyatt, No. CV-23-02659-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Experian Information Solutions Incorporated, et al., 13 Defendants. 14 15 16 Plaintiff, who is self-represented, filed his complaint in this action on December 20, 17 2023. (Doc. 1.) The complaint named four defendants: Experian Information Solutions 18 Incorporated (“Experian”), Fifth Third Bank NA (“Fifth”), Nelnet Incorporated (“Nelnet”), 19 and Achieve Personal Loan (“Achieve”). On February 14, 2024, Plaintiff and Fifth settled 20 the claims between them (Doc. 24), and Fifth was terminated as a party on February 29, 21 2024 (Docs. 35, 37). Nelnet filed an answer on February 20, 2024. (Doc. 29.) Experian 22 filed an answer on February 28, 2024. (Doc. 32.) Achieve filed a motion to dismiss on 23 April 9, 2024. (Doc. 42.) Instead of responding to Achieve’s motion to dismiss, Plaintiff 24 filed an amended complaint on April 23, 2024. (Doc. 51.) Plaintiff did not file a motion for 25 leave to amend that complies with Local Rule of Civil Procedure 15.1(a), but he filed his 26 amended complaint within 21 days of service of Achieve’s motion to dismiss, which leads 27 the Court to believe Plaintiff intended to amend his complaint once as a matter of course 28 pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). 1 Rule 15(a)(1)(B) states that “if the pleading is one to which a responsive pleading 2 is required,” then “[a] party may amend its pleading once as a matter of course no later 3 than . . . 21 days after service of a responsive pleading or 21 days after service of a motion 4 under Rule 12(b), (e), or (f), whichever is earlier.” “The rule does not make clear whether 5 the expiration of a plaintiff’s time to amend as of right with respect to one of several 6 defendants bars the plaintiff from amending as of right with respect to other defendants, 7 and the Ninth Circuit has not addressed that issue. However, other courts have held that 8 ‘[i]f the case has more than one defendant, and not all have filed responsive pleadings, the 9 plaintiff may amend the complaint as a matter of course with regard to those defendants 10 that have yet to answer.’” Boyd v. Santa Cruz Cnty., No. 15-cv-00405-BLF, 2015 WL 11 3465837, at *4 (N.D. Cal. June 1, 2015) (quoting Williams v. Bd. of Regents of Univ. Sys. 12 of Georgia, 477 F.3d 1282, 1291 (11th Cir. 2007)). Still, some courts have not adopted this 13 interpretation of Rule 15(a)(1)(B) and instead have concluded that “a plaintiff's 21-day 14 clock to amend without leave of court applies to the case as a whole, not to individual 15 defendants, and it begins to run with the first responsive pleading or Rule 12 motion filed 16 in the case.” Doe v. Gupta, No. 3:22-cv-1122, 2023 WL 6290625, at *2 (N.D. Ohio Sep. 17 27, 2023) (collecting cases). 18 The rule is ambiguous. The interpretation advanced by courts such as the Northern 19 District of Ohio in Doe is more straightforward and administrable. But the Court adopts 20 the Eleventh Circuit’s interpretation in Williams for two reasons. First, although the Ninth 21 Circuit has not addressed the issue, district courts within the Ninth Circuit have adopted 22 the Eleventh Circuit’s approach. See, e.g., Myles v. Core, No. 5:23-cv-00165-MCS-MAA, 23 2023 WL 8114881, at *3 (C.D. Cal. Oct. 7, 2023); Aldini AG v. Silvaco, Inc., No. 21-cv- 24 06423-JST, 2022 WL 20016826, at *2 n.3 (N.D. Cal. Aug. 3, 2022); Boyd, 2015 WL 25 3465837, at *4; Hill v. Clovis Police Dep’t, No. 1:11-cv-1391 AWI SMS, 2011 WL 26 5828224, at *9 (E.D. Cal. Nov. 18, 2011); Blanco v. Am. Home Mortg. Serv. Inc., No. CIV. 27 09-578 WBS DAD, 2009 WL 2171071, at *1 (E.D. Cal. July 20, 2009); Paradigm 28 Precision Holdings, LLC v. Prospect Mfg., No. 08-CV-00573-PHX-FJM, 2008 WL 1 5111110, at *1 (D. Ariz. Dec. 3, 2008); Termini v. Frontier Commc’ns of Am., Inc., No. 2 CV 08-8042-PCT-JAT, 2008 WL 2783276, at *2 n.4 (D. Ariz. July 16, 2008); French v. 3 Farm Bureau Mut. Ins. Co. of Idaho, No. CV 07-15-MO, 2007 WL 2011191, at *2 (D. Or. 4 July 6, 2007); Ramirez v. Silgan Containers, No. CIV F 07-0091 AWI DLB, 2007 WL 5 1241829, at *3 (E.D. Cal. Apr. 26, 2007). Cf. Carson v. Ryan, No. CV-17-01641-PHX- 6 ROS (BSB), 2018 WL 4782325, at *2 n.2 (D. Ariz. July 13, 2018) (acknowledging this 7 interpretation, but not weighing in on the issue). Absent a firm conviction that this 8 interpretation is wrong, the Court is not inclined to create an intra-circuit split. Second, this 9 interpretation better achieves the purpose behind Rule 15(a)(1), which is to permit a 10 “responsive amendment” as a matter of course to “avoid the need to decide the [Rule 12(b), 11 (e), or (f)] motion or reduce the number of issues to be decided[.]” 2009 Advisory 12 Committee Notes to Fed. R. Civ. P. 15. Here, for example, Nelnet and Experian each filed 13 answers to the complaint, not motions to dismiss. Those answers generally denied the 14 allegations in the complaint and stated boilerplate affirmative defenses but did not 15 otherwise identify any specific defects in the complaint. There would have been no reason 16 for Plaintiff to amend as a matter of course in response to those answers. It was not until 17 Achieve filed its motion to dismiss that Plaintiff was put on notice of specific potential 18 defects in his complaint. 19 In ruling otherwise, the Doe court observed that the 2009 Advisory Committee 20 Notes to Rule 15 state: “The 21-day periods to amend once as a matter of course after 21 service of a responsive pleading or after service of a designated motion are not cumulative. 22 If a responsive pleading is served after one of the designated motions is served, for 23 example, there is no new 21-day period.” But the Court understands this to mean only that, 24 in multi-defendant cases, the 21-day period does not begin anew as to all defendants each 25 time one of the defendants files a responsive pleading or covered motion. So, here, 26 Achieve’s motion to dismiss does not restart the 21-day clock as to Nelnet and Experian. 27 It does not follow, however, that the expiration of the 21-day period as to the first 28 responding defendant extinguishes a plaintiff’s right to amend as a matter of course as to 1 all subsequently responding defendants, especially when the first responding defendant 2 does not identify any specific perceived defects in the complaint or any perceived defects 3 pertinent to the other defendants. 4 What this means for Plaintiff is this: because more than 21 days have passed since 5 Nelnet and Experian filed their answers, he cannot amend as a matter of course as to those 6 defendants. If he wants to amend his complaint as to Nelnet and Experian, he needs to file 7 a motion for leave to amend (or, if all parties agree to the amendment, a stipulation). But 8 Plaintiff may amend his complaint once as a matter of course as it relates to his claims 9 against Achieve. Plaintiff did not file a redline version of his amended complaint that shows 10 how it differs from the original, as is required by Local Rule 15.1(b). As a result, the Court 11 cannot tell whether the amended complaint Plaintiff filed on April 23, 2024, amends the 12 claims against Achieve only, or whether it also amends the claims against Nelnet and 13 Experian. Accordingly, the Court will require Plaintiff to file a redline version of his 14 amended complaint that shows how it differs from his original complaint. If the only 15 changes pertain to the claims against Achieve, then the Court will accept the amended 16 complaint as an of-right amendment under Rule 15(a)(1)(B).1 But if the amended complaint 17 also includes changes to the claims against Nelnet and Experian, then the Court cannot 18 accept his amended pleading as an of-right amendment under Rule 15(a)(1)(B) because the 19 amendment comes more than 21 days after Nelnet and Experian filed their answers. If such 20 is the case, Plaintiff will need to file a motion (or a stipulation) for leave to amend under 21 Rule 15(a)(2) and Local Rule 15.1(a). 22 / / / 23 / / / 24 / / / 25 26 27 1 If such is the case, Nelnet and Experian will be required to answer the of-right amended complaint—even though the changes do not apply to them—because, as a 28 practical matter, “the Court cannot have multiple versions of the complaint operative against different defendant[.]” Termini, 2008 WL 2783276, at *2 n.4. 1 IT IS ORDERED that, by no later than April 30, 2024, Plaintiff file a redline 2|| version of his amended complaint (Doc. 51) that shows how it differs from the original 3 || version (Doc. 1), as required by Local Rule 15.1(b). 4 Dated this 24th day of April, 2024. 5 6 (Loe tha 9 Upited States Dictric Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-