United States District Court, D. Nevada
REPORT & RECOMMENDATION
Hoffman, Jr. United States Magistrate Judge
before the court is Defendant Chateau Bordeaux Owners'
Association's Motion for Leave to File Cross Complaint
Against Defendant Nevada Association Services, Inc. (ECF No.
19), filed on May 17, 2017. No responses were filed.
case arises out of a dispute regarding a homeowner's
association's foreclosure sale of a residential property
that occurred in 2013. Plaintiff HSBC Bank USA, N.A. filed a
complaint naming Chateau Bordeaux Owners' Association
(“HOA”), Nevada Association Services, Inc., and
Williston Investment Group, LLC, as defendants in this case.
(Compl. (ECF No. 1).) Plaintiff subsequently filed a notice
of voluntary dismissal of Nevada Association Services.
(Notice of Voluntary Dismissal (ECF No. 10)). The HOA now
requests leave of the court to bring a
cross-complaint against Nevada Association Services, which
the HOA states is the company that it hired to collect
delinquent assessments relating to the property and that
acted as the foreclosing trustee. The HOA argues that Nevada
Association Services has superior knowledge of the facts and
circumstances relating to this case and that adding it as a
party serves judicial economy.
a party may amend its pleading once “as a matter of
course” within twenty-one days of serving it, or within
twenty-one days after service of a responsive pleading or
motion under Rule 12(b), (e), or (f). Fed.R.Civ.P. 15(a)(1).
Otherwise, “a 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.; Foman v. Davis, 371 U.S. 178, 182
(1962). “The court considers five factors in assessing
the propriety of leave to amend-bad faith, undue delay,
prejudice to the opposing party, futility of amendment, and
whether the plaintiff has previously amended the
complaint.” United States v. Corinthian
Colls., 655 F.3d 984, 995 (9th Cir. 2011). It is within
the district court's discretion to determine whether to
grant leave to amend, and “[a] district court does not
err in denying leave to amend where the amendment would be
futile.” Gardner v. Martino, 563 F.3d 981, 990
(9th Cir. 2009).
there is no indicia of bad faith and the HOA has not
previously amended its pleading. Thus, the relevant questions
are whether there was undue delay, whether amendment would
prejudice Nevada Association Services, and whether amendment
would be futile. Regarding undue delay, the HOA does not
explain why it waited until the final day under the
scheduling order for moving to amend the pleadings or to add
parties to bring its motion. (See Scheduling Order
(ECF No. 16) at 2.) Nevada Association Services previously
was a party in this case, and the HOA claims that Nevada
Association Services was its agent during the foreclosure
proceedings in 2013. Thus, the HOA knew about Nevada
Association Service's existence and involvement in this
matter long before the commencement of this case. Given that
Nevada Association Services previously was dismissed from the
case, it would be prejudiced by having to participate in this
case, particularly with only approximately two months of
discovery remaining. Regarding futility, the HOA does not
provide points and authorities on this factor and therefore
consents to a denial of its motion on that point.
See LR 7-2(d) (stating that “[t]he failure of
a moving party to file points and authorities in support of
the motion constitutes a consent to the denial of the
motion.”). Weighing the factors, the court finds that
it is not proper to amend under these circumstances and
therefore will recommend denial of the HOA's motion.
THEREFORE RECOMMENDED that Defendant Chateau Bordeaux
Owners' Association's Motion for Leave to File Cross
Complaint Against Defendant Nevada Association Services, Inc.
(ECF No. 19) be DENIED.
report and recommendation is submitted to the United States
district judge assigned to this case under 28 U.S.C. §
636(b)(1). A party who objects to this report and
recommendation may file a written objection supported by
points and authorities within fourteen days of being served
with this report and recommendation. Local Rule IB 3-2(a).
Failure to file a timely objection may waive the right to
appeal the district court's order. Martinez v.
Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
 Given that Nevada Association Services
is no longer a party to this case, it is unclear to the court
whether the HOA is attempting to bring a crossclaim against
Nevada Association Services under Rule 13(g) or 13(h) of the
Federal Rules of Civil Procedure, or whether the HOA means to
bring a third-party complaint under Rule 14. The HOA did not
provide the court with legal authority on this issue.