IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Diane Berona, :

 

Plaintiff, : Case No. 2:13-cv-00012

 

v. :

 

Franklin County : JUDGE EDMUND A. SARGUS, JR.

Treasurer, at al., Magistrate Judge Kemp

:

Defendants. 

 

OPINION AND ORDER

This case is before the Court to consider a motion for leave

to file an amended complaint and a motion to withdraw the motion

for joinder filed by Plaintiff Diane Berona. (Doc. #27). Also

before the Court is Ms. Berona’s motion for attorney fees. (Doc.

#17). For the reasons that follow, the motion to withdraw will

be granted, but the motion for leave to amend and the motion for

attorney fees will be denied.

I. Background

On January 7, 2013, Ms. Berona filed this lawsuit against

the Bank of America, N.A. (“BANA”) and the Franklin County

Treasurer, claiming that BANA cannot prove that it has a mortgage

interest in her property and that it, therefore, improperly

collected mortgage payments as well as the proceeds from a short

sale of that property. Ms. Berona further alleges that the

Franklin County Treasurer “may have an interest” in the property

“by virtue of any unpaid real estate taxes and assessments.” 

(Doc. #1 at 3, ¶8).1 Based upon these allegations, Ms. Berona

1 As this Court noted previously, “[n]owhere does Plaintiff

indicate the relief she seeks from [the Franklin County

Treasurer], nor is it clear to the Court what that relief might

be.” (Doc. #15 at 5). Although the Franklin County Treasurer

has not made an appearance in this case, as discussed infra, this

Court withheld granting a default judgment against the Franklin

Case: 2:13-cv-00012-EAS-TPK Doc #: 34 Filed: 10/29/13 Page: 1 of 9 PAGEID #: <pageID>
attempts to bring claims for unjust enrichment and a violation of

the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1962

et seq. Ms. Berona also alleges that BANA engaged in fraud which

led her to rely to her detriment on misrepresentations that it

was the true holder of the note on the first and second mortgages

on the property. She seeks leave to amend the complaint to add a

claim for breach of contract and also to allege that BANA is

liable for actions taken by Countrywide Home Loans, Inc.

(“Countrywide”). BANA opposes the motion for leave to amend,

arguing that the motion is untimely, that Ms. Berona has not

demonstrated good cause to extend the deadline in the Court’s

scheduling order, and that BANA would be unfairly prejudiced by

granting leave. 

Prior to addressing the motion for leave to amend, the Court

will briefly address Ms. Berona’s motion for leave to withdraw

her motion for joinder filed on August 8, 2013. Ms. Berona seeks

to withdraw the motion for joinder based upon “new information”

regarding the merger between Countrywide and BANA, which her

counsel claims led her to file the motion for leave to amend. 

(Doc. #32 at 3). More specifically, Ms. Berona no longer seeks

to add Countrywide as a defendant, but rather wishes to plead

that BANA is liable for any actions taken by Countrywide, based

upon the terms of the merger. BANA acknowledges Ms. Berona’s

desire to withdraw the motion for joinder, but does not oppose

it. (Doc. #28 at 1; Doc. #30 at 2, 5). For good cause shown,

the Court will grant the motion for leave to withdraw. The Court

now turns to the motion for leave to amend. After addressing the

motion for leave to amend, the Court will examine the motion for

attorney fees.

County Treasurer until it has had an opportunity to hear the case

against BANA on the merits. Id.

2

Case: 2:13-cv-00012-EAS-TPK Doc #: 34 Filed: 10/29/13 Page: 2 of 9 PAGEID #: <pageID>
II. The Motion for Leave to Amend

Motions for leave to amend are evaluated under the standards

in Fed. R. Civ. P. 15(a), which provides that leave to amend

should be freely given if justice so requires. Fed. R. Civ. P.

15(a) cannot be read in isolation, however, but must be read

together with Fed. R. Civ. P. 16(b). See Leary v. Daeschner, 349

F.3d 888, 906-07 (6th Cir. 2003). Fed. R. Civ. P. 16(b) requires

the Court, in each civil action which is not exempt from the

rule, to “enter a scheduling order that limits the time” to,

inter alia, file motions, identify expert witnesses, and complete

discovery. The rule further provides that “[a] schedule shall

not be modified except upon a showing of good cause. . . .” 

Consequently, the Court is permitted to examine the standard

factors governing amendment of complaints under Fed. R. Civ. P.

15(a) only if it is satisfied that any prior date for the filing

of a motion for leave to amend either has been met or is properly

extended under the good cause provisions of Fed. R. Civ. P.

16(b).

The Court has broad discretion to modify its own pretrial

orders, but it must consider that “[a]dherence to reasonable

deadlines is ... critical to maintaining integrity in court

proceedings,” and that pretrial scheduling orders are “the

essential mechanism for cases becoming trial-ready in an

efficient, just, and certain manner.” Rouse v. Farmers State

Bank, 866 F. Supp. 1191, 1198-99 (N.D. Iowa 1994). In evaluating

whether the party seeking modification of a pretrial scheduling

order has demonstrated good cause, the Court is mindful that

“[t]he party seeking an extension must show that despite due

diligence it could not have reasonably met the scheduled

deadlines.” Deghand v. Wal-Mart Stores, Inc., 904 F. Supp. 1218,

1221 (D. Kan. 1995). The focus is primarily upon the diligence

of the movant; the absence of prejudice to the opposing party is

3

Case: 2:13-cv-00012-EAS-TPK Doc #: 34 Filed: 10/29/13 Page: 3 of 9 PAGEID #: <pageID>
not equivalent to a showing of good cause. See Tschantz v.

McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995). Of course,

“[c]arelessness is not compatible with a finding of diligence and

offers no reason for a grant of relief.” Dilmar Oil Co. v.

Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997). 

Further, although the primary focus of the inquiry is upon the

moving party’s diligence, the presence or absence of prejudice to

the other party or parties is a factor to be considered. See

Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002). It

is with these standards in mind that Ms. Berona’s motion will be

decided.

Although Ms. Berona filed her motion for leave after the

established deadline, she did not address Fed. R. Civ. P. 16(b)’s

good cause standard in her supporting memorandum. Rather, Ms.

Berona refers to Fed. R. Civ. P. 15(a) and argues that amendment

should be allowed because “the case is still in the beginning

stage,” and amendment would further settlement. (Doc. #27 at 3-

4). She also asserts that justice cannot be served without

allowing amendment, and it is “judicially efficient to do so at

this date.” Id. 

In its opposition to Ms. Berona’s motion, BANA argues that

Ms. Berona fails to satisfy the good cause requirement of Fed. R.

Civ. P. 16(b). BANA asserts that Ms. Berona “does not even

acknowledge that there was a deadline for seeking leave to amend,

much less present facts sufficient to establish good cause that

the deadline should be extended to accommodate her motion.” 

(Doc. #30 at 4). BANA likewise argues that Ms. Berona was not

diligent in seeking leave and that she has not shown that the

need for additional time was unforeseeable. Finally, BANA

contends that denying leave to amend will not create a

substantial risk of unfairness to Ms. Berona. Accordingly, BANA

urges that the relevant factors “weigh heavily against granting

4

Case: 2:13-cv-00012-EAS-TPK Doc #: 34 Filed: 10/29/13 Page: 4 of 9 PAGEID #: <pageID>
leave.” Id.

Ms. Berona addresses the issue of good cause for the first

time in her reply brief, stating that she “can easily satisfy the

test under the Rule 16(b) analysis.” (Doc. #23 at 2). Ms.

Berona argues that she was diligent in seeking leave to amend and

that the delay was caused by defense counsel’s misrepresentation

of facts concerning the merger between Countrywide and BANA. Id.

at 3. Ms. Berona further argues that there would be substantial

risk of unfairness to her if leave is not granted, and that

filing the motion “a mere six days after the deadline” was not

the result of bad faith. Id.

In the Rule 26(f) report, counsel for both Ms. Berona and

BANA agreed that June 21, 2013 was a reasonable deadline for

filing a motion to amend the pleadings. (Doc. #20). Based on

discussions at the first pretrial conference which suggested that

Ms. Berona’s counsel may require additional time to identify the

proper parties, the Court issued an order permitting any motion

to amend to be filed by August 21, 2013. (Doc. #21 at 2-3). 

Despite granting the additional time, Ms. Berona’s counsel did

not file the motion for leave to amend until after the August 21

deadline. The purported reason for delay, namely an alleged

misrepresentation of fact by defense counsel concerning the

relationship between Countrywide and BANA, is unsupported by the

record. Simply put, there is no evidence to support Ms. Berona’s

argument that the delay was somehow caused by defense counsel, or

that defense counsel misrepresented any fact concerning the

merger between Countrywide and BANA. The merger that prompted

the proposed amendments took place years ago, and the record does

not support counsel’s claim that the motion for leave to amend

could not have been filed before August 21. Indeed, Ms. Berona’s

counsel readily admits that once she conducted “further

research,” she was able to learn that BANA merged with

5

Case: 2:13-cv-00012-EAS-TPK Doc #: 34 Filed: 10/29/13 Page: 5 of 9 PAGEID #: <pageID>
Countrywide in 2008, with BANA assuming liability for

Countrywide’s obligations. (Doc. #32 at 2). Accordingly, the

Court agrees with BANA’s position that the “proposed amendments

are not based on any newly discovered facts that were not

available or known by Plaintiff at the time she filed her

complaint.” (Doc. #30 at 4). Moreover, Ms. Berona’s counsel did

not move for an extension or otherwise indicate that she would be

unable to file the motion to amend until after the relevant

deadline. Because Ms. Berona’s counsel fails to make any showing

of reasonable diligence to provide this Court with a basis for

finding good cause, the Court must deny the motion for leave to

amend. 

Looking briefly at the other relevant factors, the Court

recognizes that the delay here is minimal and would not cause

substantial prejudice to BANA given the early stage of the

proposed amendment. Nevertheless, the Court is required to deny

the motion for leave to amend in light of counsel’s failure to

demonstrate the type of reasonable diligence that justifies

extending a deadline found in an order issued under Rule 16(b). 

Counsel’s blanket assertion that “there was no lack of due

diligence,” without any support for that statement in the record,

simply does not make it so. (Doc. #32 at 3). Because the Court

cannot excuse counsel’s obligation to satisfy the good cause

requirement of Fed. R. Civ. P. 16(b), there is no reasonable

basis for adjusting the Court deadline in these circumstances. 

Consequently, Ms. Berona’s motion for leave to amend will be

denied.

III. The Motion for Attorney Fees

The Court next turns to Ms. Berona’s motion for attorney

fees. (Doc. #17). In the motion, Ms. Berona contends that

BANA’s failure to timely answer the complaint caused her to incur

“the fees associated with drafting and filing the Application to

6

Case: 2:13-cv-00012-EAS-TPK Doc #: 34 Filed: 10/29/13 Page: 6 of 9 PAGEID #: <pageID>
the Clerk for Entry of Default, and the Motion for Default

Judgment.” (Doc. #17 at 2). In opposition, BANA argues that the

costs incurred in moving for default were “unnecessary and

premature.” (Doc. #19 at 1). 

The record reflects that Ms. Berona moved for entry of

default on February 4, 2013 (Doc. #6), and the Clerk of this

Court entered default the following day (Doc. #7). On February

21, 2013, BANA filed a motion to set aside the entry of default

and for additional time to respond to the complaint. (Doc. #9). 

Ms. Berona did not respond to the motion, but instead filed a

motion for default judgment. (Doc. #10). On April 10, 2013, the

Court granted the motion for extension of time to respond and

stayed briefing on the motion for default judgment until it

issued a decision on the motion to set aside the entry of

default. (Doc. #14). 

On May 9, 2013, the Court issued an order granting the

motion to set aside the entry of default and for additional time

to respond to the complaint. (Doc. #15). In granting the

motion, the Court found that Ms. Berona served BANA at a location

where it did not typically receive service of process, causing a

delay in forwarding the summons and complaint to the legal

department. The Court also found that Ms. Berona would not be

prejudiced by the setting aside of the entry of default, that

BANA had a meritorious defense, and that its conduct was not

culpable. Based upon these findings, the Court also held that

Ms. Berona’s motion for default judgment was moot as to BANA. 

The motion was also denied as to the Franklin County Treasurer. 

The Court made the latter determination despite the Franklin

County Treasurer’s failure to appear, opting for the preferred

practice which is to withhold granting a default judgment until a

trial of the action is heard against the appearing defendant. 

As this Court has observed previously, “BANA moved promptly

7

Case: 2:13-cv-00012-EAS-TPK Doc #: 34 Filed: 10/29/13 Page: 7 of 9 PAGEID #: <pageID>
to set aside the default before a judgment was entered or even

moved for . . . ” and the Court set aside the entry of default. 

(Doc. #15 at 4). The Court will not award attorney fees for

filing the motion for default. Further, Ms. Berona’s counsel

also opted to incur additional costs at her own peril by choosing

to file the motion for default judgment instead of responding to

the motion to set aside and for additional time and by not

recognizing the strong likelihood that the Court would set aside

the entry of default. Because Ms. Berona has failed to set forth

any ground upon which this Court could award her attorney fees,

the motion for attorney fees will be denied. 

IV. Conclusion

 For the reasons set forth above, the motion to withdraw the

motion for joinder filed by Plaintiff Diane Berona is granted. 

(Doc. #27). The Clerk is directed to remove the motion for

joinder (Doc. #23) from this Court’s pending motions list. The

motion for leave to file an amended complaint (Doc. #27) and the 

motion for attorney fees (Doc. #17) are denied.

V. Procedure on Objections

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), F ed. R. Civ. P.; Eastern Division Order No. 91-3,

pt. I., F., 5. The motion must specifically designate the order

or part in question and the basis for any objection. Responses

to objections are due fourteen days after objections are filed

and replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

8

Case: 2:13-cv-00012-EAS-TPK Doc #: 34 Filed: 10/29/13 Page: 8 of 9 PAGEID #: <pageID>
This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

9

Case: 2:13-cv-00012-EAS-TPK Doc #: 34 Filed: 10/29/13 Page: 9 of 9 PAGEID #: <pageID>