IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

GEORGE	P.	SHEDD	and	 					)

PAMELA	J.	SHEDD 					)

					)

v. 					) CIVIL	ACTION	NO.	14-00275-CB-M

					)

WELLS	FARGO	HOME	 					)

MORTGAGE,	INC.,	et	al. 				 )

ORDER

This	matter	is	before	the	Court	on	a	Plaintiffs’ motion	seeking leave	to	file	a	Third	

Amended	Complaint	and	Summary	Statement	of	Facts. (Doc.	124.)		Defendant	Wells	Fargo	

Home	Mortgage,	Inc.	(WFHM)	and	Monument	Street	Funding,	II,	LLC,	have filed	a	response	

in	opposition	(Doc.	129),	and	Plaintiffs	have	filed	a	reply	(Doc.	133).				Plaintiffs’	proposed	

amendment	is	for	the	sole	purpose	of	substituting	Wells	Fargo	Bank,	N.A.	in	place	of	Wells	

Fargo	Home	Mortgage,	Inc.		For	reasons	discussed	below,	the	Court	grants	the	motion	for	

leave	to	amend.

Procedural	Background1

In	October	2014,	the	Court	granted,	in	part,	and	denied,	in	part, the	Defendants’	

motions	to	dismiss	the	first	amended	complaint.		In	November	2014,	a	Rule	16(b)	

Scheduling	Order	was	entered.		(Doc.	38.)	In	December	2014,	the	Scheduling	Order	was	

amended,	and	the	date	for	filing	amended	pleadings	was	extended	to	April	17,	2015.		(Doc.	

40.)	 On	April	16,	2015,	Magistrate	Judge	Milling	stayed	this	action	pending	settlement	

negotiations	and,	ultimately, held	a	settlement	conference.		(Doc.	63.)	After	the	settlement	

																																																							 1 Because	the	proceedings	in	this	action	have	been	detailed	in	prior	orders	(Docs.	35	

& 105),	only	an	abbreviated	background	is	set	out	here.		

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conference	proved	unsuccessful,	Magistrate	Judge	Milling	entered	an	order	stating,	in	

relevant	part:

Not	later	than	June	19,	2015,	Plaintiffs	will	file	a	motion	to	amend	the	

complaint,	and	Defendants	will	file	a	response	to	that	motion	not	later	than	

July	2,	2015.	The	stay	on	discovery will	be	lifted	and	an	amended	scheduling	

order	will	be	entered once	that	motion	and	any	others	precipitated	by	it	have	

been decided	and	the	parties	know	which	of	Plaintiffs’	claims	are

proceeding.

(Doc.	63.)		

The motion	for	leave	to	amend	was	granted	without	opposition.		Plaintiffs	filed	their	

voluminous	Second	Amended	Complaint (SAC).		Motions	to	dismiss	followed	along	with	

another	round	of	briefing.			Due	to	the	length	and	shotgun	pleading	style	of	the SAC,	the	

undersigned	held	a	case	management	conference	with	counsel.		As	a	result	of	the	

conference,	the	Court	concluded	that, although	the	SAC	was	unwieldy,	requiring	a	third	

amended	complaint	would	not	be	an	efficient	use	of	resources.			(Order,	Doc.	102.)		Instead,	

the	Court	found	it	best	to	rule	on	the	motions	to	dismiss	first,	then	require	Plaintiffs	to	

submit	a	Summary	Statement	of	Facts.		On	October	26,	2015,	the	Court	granted,	in	part,	and	

denied,	in	part,	Defendants’	motions	to	dismiss.		Plaintiffs	filed	a	Summary	Statement of	

Facts.	 Defendants	filed	responses	to	the	Summary	Statement	of	Facts	and	answers to	the

claims	asserted	in	the SAC.		A	preliminary	scheduling	order	was	entered	requiring	the	

parties	to	file	a	Supplemental	Report	of	Parties	by	December	14,	2015.		Plaintiffs	filed	the	

instant	motion	for	leave	to	amend	on	December	23,	2015.		On	January	6,	2016,	Magistrate	

Judge	Milling	entered	an	Amended	Scheduling	Order (DOC.	127).		Pursuant	to	that	order,	

the	new	deadline	for	amending	pleadings	is March	25,	2016.

Analysis

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Defendants assert	two	grounds	for	their	general	opposition	to	the	motion	for	leave	

to	amend.		First,	they	contend	that	Plaintiffs	have	failed	to	make	the	“good	cause”	showing	

required	by	Rule	16(b)	when	a	party	seeks	to	amend	after the	deadline	for	amending	

pleadings	has	expired.		 Alternatively,	Defendants	argue	that	Plaintiffs	should	not be	

allowed	to	amend	under	Rule	15(a)	because	they	were	dilatory	in	filing	their	proposed	

amendment.		In	the	event	that	the	Court	rejects	these	arguments,	Defendants	contend	leave	

to	amend	should	be	denied	with	respect	to	the	RESPA	claims	because	the	statute	of	

limitations	has	expired.		The	latter	argument	implicates	Rule	15(c).		

Rule	16(b) Does	Not	Apply

It	is	well-settled	that	a	party	seeking	to	amend	after	the	deadline	set	in	the	Rule	

16(b)	scheduling	order	must	show	“good	cause”	for extension	of	the	scheduling	order.		Sosa	

v.	Airprint	Sys.,	Inc.,	133	F.3d	1417,	1418	(11th Cir.	1998);	see	also	Fed.	R.	Civ.	P.	16(b).		But	if	

the	deadline	for	amendment	has	not	expired,	the	motion	for	leave	to	amend	is governed	by	

the	standard	set	forth	in	Rule	15(a).			Sosa,	133	F.3d	at	1418In	this	case,	the	last	deadline	

for	filing	amended	pleadings--April	17,	2015—was	stayed.	(Doc.	40.)		No	subsequent Rule	

16(b) order set a	deadline	for	amending	pleadings	until	the	Amended	Scheduling	Order	

dated	January	6,	2016,	which	set	March	25,	2016	as	the	new	deadline.2		Plaintiffs’	motion	

was	filed	within	the	Rule	16(b)	deadline;	therefore	the	“good	cause”	standard	does	not	

apply.

Leave	to	Amend	is	Appropriate	Under	Rule	15(a)	

																																																							 2 The	Court	acknowledges	that	the	state	of	the	pleadings	in	this	case	has	been	

confusing,	to	say	the	least.		Clearly,	the	Court	did	not	anticipate	a	Third	Amended	

Complaint,	but	it	never	forbade	Plaintiffs	from	filing	one.		Furthermore,	because	Rule	16(b)	

deadlines	were	stayed	pending	the	Court’s	ruling	on	the	motion	to	dismiss	the	Second	

Amended	Complaint,		the	deadline	for	amending	pleadings	did	not	expire.	It	was	suspended	

until	Magistrate	Judge	Milling	entered	the	January	6,	2016	Amended	Scheduling	Order.

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Rule	15(a)	imposes	a	less	exacting	standard	on	a	party	seeking	to	amend.		It	

provides	that	“leave	to	amend	should	be	freely	given	when	justice	so	requires.”		Fed.	R.	Civ.	

P.	15(a).		

In	the	absence	of	any	apparent	or	declared	reason—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.—the	leave	sought	should,	as	the	rules	require,	be	“freely	

given.”

Jameson	v.	Arrow	Co.,	75	F.3d	1528,	1534-35	(11	Cir.	1996)	(quoting	Foman	v.	Davis,	371	

U.S.	178,	182	(1962)).		Defendants	accuse	the	Plaintiffs	of	“undue	delay”	in	seeking	leave	to	

amend	because	Defendants	had	informed	Plaintiffs	on	multiples	occasions	that	Wells	Fargo	

Home	Mortgage,	Inc.	was	a	division	of	Wells	Fargo	Bank,	N.A.		Further,	Defendants	point	

out	that	Plaintiffs	could	have	determined	that	Wells	Fargo	Home	Mortgage,	Inc.	had	not	

been	in	existence	since	2004	by	consulting	the	website	of	the	Alabama	Secretary	of	State.		

While	that	may	be true,	Wells	Fargo	Bank,	N.A.	has:		(1)	accepted	service;	(2)	appeared	and	

actively	participated	in	this	action	as	if	it	were	a	proper	defendant;	and	(3)	misled,	or	at	

least	confused,	both	the	Court	and	the	Plaintiffs	about	its	relationship	to	Wells	Fargo	Home	

Mortgage,	Inc.3		Notably,	Defendants’	labeling	of	Wells	Fargo	Home	Mortgage,	Inc.	as	a	

“division”	of	Wells	Fargo	Bank,	N.A.	implied	that	the	former	was	a	part	of	the	latter,	not	a	

separate	defunct	corporation.		Plaintiffs	could	have	been	more	attentive	to	deciphering	the	

details	of	the	Wells	Fargo	corporate	structure,	but	Wells	Fargo	Bank,	N.A.	bears	part	of	the	

																																																							 3 See		Order	(Doc.	105)	dated	10/26/15	at	3	n.	2.

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blame	for	creating	the	confusion.		In	these	circumstances,	the	Court	cannot	say	that	

Plaintiffs’	delay	in	seeking	to	amend	was	either	undue	or	dilatory.4

Plaintiffs’ RESPA	Claims	Are	Timely	Based	on	Rule	15(c)’s	Relation	Back	

Principles	

Defendants’	fallback	position	is	that	the	amendment,	if	allowed,	should not	include	

RESPA	claims	because	those	claims	are	time	barred. Plaintiffs	argue	that	their	RESPA	

claims	are	timely	under	the	relation	back	principles	of	Rule	15(c	(1).		That	rule	sets	forth	

three	situations	in	which	the	amended	pleading	“relates	back”	to	the	date	the	original	

pleading	was	filed.		Relation	back	applies	when:

(A)	the	law	that	provides	the	applicable	statute	of	limitations	allows	relation	

back;

(B)	the	amendment	asserts	a	claim	or	defense	that	arose	out	of	the	conduct,	

transaction,	or	occurrence	set	out--or	attempted	to	be	set	out--in	the	original	

pleading;	or

(C)	the	amendment	changes	the	party	or	the	naming	of	the	party	against	

whom	a	claim	is	asserted,	if	Rule	15(c)(1)(B)	is	satisfied	and	if,	within	the	

period	provided	by	Rule	4(m)	for	serving	the	summons	and	complaint,	the	

party	to	be	brought	in	by	amendment:

(i)	received	such	notice	of	the	action	that	it	will	not	be	

prejudiced	in	defending	on	the	merits;	and

(ii)	knew	or	should	have	known	that	the	action	would	have	

been	brought	against	it,	but	for	a	mistake	concerning	the	

proper	party's	identity.

Fed.	R.	Civ.	P.	15(c)(1).		Relying	on	subsection	(C),	Plaintiffs	point	out	that	Wells	Fargo	

Bank,	N.A.,	had	both	notice	of	the	action	within	the	Rule period	and	knowledge	that	

Plaintiffs	would	have	named	it	as	a	Defendant but	for	their	mistake.		That	mistake	was	

perpetuated	by	Wells	Fargo	Bank	N.A.’s	appearance	and	active	defense	on	behalf	of	WFHM.		

																																																							 4 Citing	Krupski	v.	Costa	Crociere,	S.p.A.,	560	U.S.	538	(2010),	Plaintiffs	argue	that	

Rule	15(a)	does	not	apply	and	that	leave	to	amend	is	mandatory	if	the	amendment	relates		

back	under	Rule	15(c).		However,		Krupski	merely	stands	for	the	proposition	that	

dilatoriness	or	undue	delay	are	only	at	issue	in	deciding	whether	to		allow	an	amendment	

under	Rule	15(a)	and	have	no	relevance	in	deciding	whether	an	amendment	(once	

allowed)	relates	back	for	statute	of	limitations	purposes.

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Defendants	counter	that	there	was	no	“mistake”	because	Plaintiffs	“were	fully	aware	of	the	

relationship	between	Wells	Fargo	Bank	,	N.A.	and	WFHM.”		(Defs.’ Br.	13,	Doc.	129.) Even	if	

Plaintiffs	were	“fully	aware”	of	that	relationship,	Plaintiffs’ knowledge is	not	the	focus	of	the	

inquiry.

In	Krupski	v.	Costa	Crociere,	S.p.A.,	560	U.S.	538	(2010),	a	case	almost	directly	on	

point,	the	Supreme	Court	distinguished	between	cases	of	misnomer,	i.e.,	mistakenly	naming	

the	wrong	party,	and	cases	involving	a	deliberate	choice	of	one	defendant	over	another.	

Krupski,	was	injured onboard	a	cruise	ship	and	later	filed	suit	against	Costa	Cruise.	In	at	

least	three	pleadings,	Costa	Cruise	asserted	that	it	was	not	the	proper	defendant	because	it	

was	merely	the	sales	and	marketing	agent	for	the	vessel’s	owner,	Costa	Crociere.		After	

Costa	Cruise	moved	for	summary	judgment,	the	district	court	allowed	Krupski	to	amend	to	

add	Costa	Crociere	who	(represented	by	the	same	counsel	as	Costa	Cruise)	promptly	filed	a	

motion	to	dismiss	because	the	statue	of	limitations	had	expired.		The	district	court	agreed	

with	the	defendant	and	dismissed	the	action,	and	the	Eleventh	Circuit	affirmed.		Both	

courts	concluded	that	Krupski	could	not	claim	“mistake”	because	she	knew	of	Costa	

Crociere’s	existence.		

The	Supreme	Court	reversed,	stating:

By	focusing	on	Krupski's	knowledge,	the	Court	of	Appeals	chose	the	wrong	

starting	point.	The	question	under	Rule	15(c)(1)(C)(ii)	is	not	whether	

Krupski	knew	or	should	have	known	the	identity	of	Costa	Crociere	as	the	

proper	defendant,	but	whether	Costa	Crociere	knew	or	should	have	known	

that	it	would	have	been	named	as	a	defendant	but	for	an	error.	Rule	

15(c)(1)(C)(ii)	asks	what the	prospective	defendant	knew	or	should	have	

known	during	the	Rule	4(m)	period,	not	what	the	plaintiff	knew	or	should	

have	known	at	the	time	of	filing	her	original	complaint.

Id. at	548.		Recognizing	that	the	purpose	of	Rule	15(c)	is	to	balance	the	defendant’s	

interests	protected	by	the	statute	of	limitations	with	the	preference	for	deciding	cases	on	

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the	merits,	the	Court	distinguished	between	“a	prospective	defendant	who	legitimately	

believed	that	the	limitations	period	had	passed	without	any	attempt	to sue	him”	and	“a	

prospective	defendant	who	understood,	or	who	should	have	understood,	that	he	escaped	

suit	during	the	limitations	period	only	because	the	plaintiff	misunderstood	a	crucial	fact	

about	his	identity.”		Id. at 550.		The	former	is	entitled	to	the	protection	of	the	statute	of	

limitations;	the	latter	is	not.		Id.		

Defendants	do	not	actually	deny	they	knew	or	should	have	known	that	Wells	Fargo	

Bank,	N.A.	would	have	been	named	but	for	an	error.		Instead,	they	rely	primarily	on	cases	

decided	prior	to	Krupski to	focus	the	spotlight	on	Plaintiff’s	knowledge.		The	only	postKrupski case	they	cite is Stewart	v.	Bureaus	Inv.	Group,	LLC,	309	F.R.D.	604	(M.D.	Ala.	2015),	

wherein the	plaintiff originally	named	only	one	defendant,	a	collection	agency,	in	her Fair	

Debt	Collection	Practices	Act		(FDCPA)	claim.		After	the	limitations	period	expired,	she	

sought	leave	to	amend	to	add	as	defendants the	attorney	and	law	firm	who had

represented	the	collection	agency	in	a	collection	action	against	her.		The	attorney	and	law	

firm	argued	the	claim	was	time	barred,	but	the	plaintiff	contended relation	back	applied.		

The	court	denied	leave	to	amend	under	Rule	15(c)(1)	because	Plaintiff	did	not	mistakenly	

sue	the	collection	agency	instead	of the	law	firm.		Rather,	she	sought	to	add	the	attorney	

and	law	firm	in	addition	to	the	collection	agency.		Stewart does	not	apply	here	for	two	

reasons.		First,	contrary	to	Krupski’s instructions,	it approaches	the	knowledge	question	

from	the	plaintiff’s	point	of	view	rather	than	the	defendant’s.		Second,	the	case	at	hand	

involves	a	different	scenario,	that	is,	one	in	which	Plaintiffs	mistakenly	sued	one	entity	

instead	of another	and	seeks	to	remedy	that	mistake,	rather	than	one	in	which	Plaintiffs	

simply	decided	to	add	more	defendants	after	the	limitations period	expired.

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In	sum,	Plaintiff’s	RESPA	claims	against	Wells	Fargo	Bank,	N.A.,	are	timely	under	the	

relation	back	principles	of	Rule	15(c).		Therefore,	Plaintiffs	shall	be	permitted	to	assert	

these	claims	against	Wells	Fargo	Bank,	N.A.	in	their	Third	Amended	Complaint.

Conclusion

Plaintiffs’ motion	for	leave	to	amend	is	GRANTED for	the	sole	purpose	of	

substituting	“Wells	Fargo	Bank,	N.A.”	as	defendant	in	place	of	“Wells	Fargo	Home	Mortgage,	

Inc.”		Plaintiffs	shall	file	a	Third	Amended	Complaint	and	Summary	Statement	of	Facts on	or	

before	March	1,	2016.

DONE and	ORDERED this	the	22nd day	of	February,	2016.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

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