[1] 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

RANDY HOWARD, et al., ) 

 ) 

Plaintiffs, ) 

 ) 

v. ) CIVIL ACTION 09-0820-WS-M 

 ) 

BAYROCK MORTGAGE ) 

CORPORATION, et al., ) 

 ) 

Defendants. ) 

ORDER 

 This matter is before the Court on the plaintiffs’ motion for leave to amend the 

complaint. (Doc. 61). Defendant Bank of America opposes the motion. (Doc. 63). 

When, as in this case, the time for amendment as of right has passed, Aa party may 

amend its pleading only with the opposing party’s written consent or the court’s leave.” 

Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.@ 

Id. Bank of America argues that leave should be denied because the plaintiffs “give no 

reason why ‘justice requires’ such an amendment,” (Doc. 63 at 1), but they offer no 

authority that the plaintiffs bear such a burden. On the contrary, A[t]he Supreme Court 

has emphasized that leave to amend must be granted absent a specific, significant reason 

for denial ... >such as undue delay, bad faith or dilatory motive on the part of the movant, 

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice 

to the opposing party by virtue of allowance of the amendment, futility of amendment, 

etc.=@ Spanish Broadcasting System, Inc. v. Clear Channel Communications, Inc., 376 

F.3d 1065, 1077 (11th Cir. 2004) (emphasis added) (quoting Foman v. Davis, 371 U.S. 

178, 182 (1962)). It is up to Bank of America to identify reasons amendment should be 

denied. 

Bank of America identifies two such reasons: prejudice and futility. Its only 

asserted prejudice is “the time and expense” it has invested in its pending motion to 

Case 1:09-cv-00820-WS-M Document 66 Filed 07/08/10 Page 1 of 2
[2] 

dismiss. Since Bank of America insists amendment is futile because the amended 

complaint “does not cure the defects in the original complaint,” for the reasons set forth 

in its motion to dismiss, it is difficult to discern how granting amendment could prejudice 

Bank of America by mooting its motion to dismiss. At any rate, A[t]he lengthy nature of 

litigation, without any other evidence of prejudice to the defendants ..., does not justify 

denying the plaintiffs the opportunity to amend the complaint.@ Florida Evergreen 

Foliage v. E.I. DuPont de Nemours & Co., 470 F.3d 1036, 1041 (11th Cir. 2006) (internal 

quotes omitted). 

Bank of America does not explain the futility of amendment except by referring 

generally to its motion to dismiss. Thus, the Court cannot evaluate its futility argument 

short of deciding the motion to dismiss, and the Court declines to decide the latter motion 

as a predicate to the former. 

For the reasons set forth above, the plaintiffs’ motion for leave to amend is 

granted. The plaintiffs are ordered to file and serve their first amended complaint on or 

before July 15, 2010. 

The stated purpose of the first amended complaint is to “delet[e] claims and 

parties that have been dismissed and clarif[y] the remaining claims.” (Doc. 61, ¶ 4). 

Because these alterations may impact Bank of America’s pending motion to dismiss, 

Bank of America is ordered to file and serve any supplemental brief in support of its 

motion to dismiss on or before July 20, 2010. The plaintiffs are ordered to file and 

serve any supplemental response on or before July 29, 2010. Such briefing shall be 

limited to new or altered material in the first amended complaint and may not address 

matters that were or could have been addressed in the previous briefing on the motion. 

The Court will take the motion to dismiss under submission on July 29, 2010. 

 

DONE and ORDERED this 8th day of July, 2010. 

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:09-cv-00820-WS-M Document 66 Filed 07/08/10 Page 2 of 2