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Bostock v. Aurora Loan Services, LLC

United States District Court, D. Idaho

July 28, 2017



          B. Lynn Winmill Chief Judge.



         Before the Court is Defendant Safeco Insurance Company of Illinois' Renewed Motion for Summary Judgment (Dkt. 55), as well as Plaintiff Barbara Bostock's motion for an extension of time to file an amended complaint. (Dkt. 61). Additionally, defendants have filed various motions to strike, including motions to strike Bostock's First Amended Complaint. See Dkts. 66, 68, 69, 77, 78. For the reasons explained below, the Court will: (1) grant Safeco's renewed motion for summary judgment; (2) deny Bostock's motion for an extension of time in which to file an amended complaint; (3) grant the motions to strike the first amended complaint; and (4) grant in part and deny in part Safeco's other motions to strike.



         The Court will first resolve Bostock's motion for an extension of time and then turn to the remaining motions.

         A. Background

         Bostock is representing herself in this action. In February 2014, she sued three defendants: (1) Aurora Loan Services, LLC, (2) Mortgage Electronic Registration System, Inc. (MERS), and (3) Safeco Insurance Company. See Dkt. 1. In March 2016, the Court granted Defendants Aurora and MERS' motion to dismiss the complaint against them. The Court construed Bostock's complaint as alleging three claims against those defendants: (1) attempted wrongful foreclosure; (2) intentional infliction of emotional distress; and (3) negligent infliction of emotional distress. The Court dismissed the attempted wrongful foreclosure claim without leave to amend and dismissed the emotional distress claims with leave to amend. Plaintiff was allowed 30 days in which to file an amended complaint. See Order, Dkt. 40, at 9.

         Bostock did not file an amended complaint within the allotted 30 days. Instead, in October 2016 - over six months after the April 2016 deadline had passed and after Defendant Safeco had filed a second motion for summary judgment - Bostock asked for an extension of time in which to file an amended complaint. See Oct. 24, 2016 Request for Additional Time to File First Amended Complaint, Dkt. 60. Then, in December 2016, before the Court ruled on her request for an extension, Bostock filed her First Amended Complaint. See First Am. Compl., Dkt. 74. All defendants oppose Bostock's request for an extension and have moved to strike the late-filed First Amended Complaint.

         B. Discussion

         Defendants MERS and Aurora analyze this motion under Federal Rule of Civil Procedure 6(b)(1)(B), which authorizes the Court to grant an extension after the original time for acting has expired “if the party failed to act because of excusable neglect.” Defendant Safeco says the motion should be analyzed under Federal Rule of Civil Procedure 16(b), which addresses requests to amend the complaint when a scheduling order is in place.

         Bostock cannot satisfy either standard. The more lenient, “excusable neglect” standard is forth in Rule 6(b), which provides:

When an act may or must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.

Fed. R. Civ. 6(b)(1)(B). Generally, Rule 6(b)(1), “like all the Federal Rules of Civil Procedure, is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258-59 (9th Cir. 2010) (internal quotation marks, citation, and alteration omitted). More specifically, in determining whether neglect is excusable, the Court considers four factors: “(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000).

         Beginning with the second factor, an eight-month delay is lengthy, particularly in this relatively straightforward case, and allowing an amended complaint at this stage in the proceedings would obviously trigger even more delay.[1]

         Regarding the reason for the delay, Bostock says she was late in filing an amended complaint (as well as in requesting an extension) “because of being ill, and not being represented by an attorney.” Dkt. 60, at 7. She does not provide much detail, however, other than to say that she now has a paralegal assisting her, that she was in the emergency room in October 2016, and that she has been in the emergency room four times since November 2014. Id. In a supplemental filing, Bostock submitted a letter from a doctor, indicating that she was seen in an emergency room on February 20, 2016, June 5, 2016, and October 17, 2016. See Nov. 3, 2016 Filing, Dkt. 64.[2]

         While the Court is usually amenable to granting extensions for health-related reasons, the party seeking the extension still must provide more specific information than Bostock has provided to justify an extension. Further, even assuming an extension would have been appropriate, the Court would not have granted an eight-month extension, particularly where Bostock filed many other documents during this same period. Specifically, between March 16, 2016, the date of the Court's order granting leave to amend, and December 30, 2016, the date Bostock filed her amended complaint, Bostock filed various documents with the Court, see Dkts. 42, 44, 45, 47, 57, 58, 60, 61, 64, 70, including a May 2, 2016 request for additional time to respond to Safeco's then-pending motion for summary judgment. See Request for Additional Time to Reply, Dkt. 45. This suggests that despite any medical issues, plaintiff could have timely filed an amended complaint, or, at a minimum, she could have moved for an extension of time much earlier. Instead, she remained silent on this point, white at the same time raising other issues with the Court. On this record, Bostock has failed to show a reasonable basis for her lengthy delay. See generally 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1165 (4th ed.) (“Generally, excusable neglect seems to require a demonstration of good faith on the part of the party seeking an extension of time and some reasonable basis for noncompliance within the time specified in the rules.”) (emphasis added).

         The Court further finds that an eight-month delay would be prejudicial to defendants and unnecessarily delay resolution of this case. Most significantly, the discovery period has passed, as has the deadline for filing dispositive motions.

         On these facts, even assuming Bostock acted in good faith, the Court cannot find excusable neglect. The Court will therefore deny Bostock's motion for an extension of time in which to file an amended complaint and grant the motions to strike the amended complaint.



         The Court will next resolve Safeco's renewed motion for summary judgment. Bostock alleges that Safeco breached the terms of a homeowner's insurance policy by failing to pay for damages associated with a February 2009 house flood. As explained below, however, Safeco was not obligated to pay Bostock's claim under the policy because Safeco had canceled Bostock's coverage as of January 13, 2009. The Court will therefore grant summary judgment in Safeco's favor.

         A. Relevant Facts

         Bostock resides in California, but for several years she owned a home in Sun Valley, Idaho. On February 11, 2009, Bostock's daughter stopped by the home and discovered ice and running water around the outside of the house and garage. Bostock later learned that a pipe servicing a jacuzzi had burst and water had leaked inside the home, causing extensive damage.

         On December 8, 2008, roughly two months before the flood was discovered, Safeco notified Bostock that unless she made a premium payment by January 12, 2009, her homeowner's insurance policy would be canceled. See Non-Pay Warning Notice, Ex. 1 to Faulkner Dec., Dkt. 41-4 (“This is the last notice you will receive.”). Bostock did not make any payment in response to that notice, and on January 20, 2009, Safeco sent Bostock a billing statement indicating that her policy had been “cancelled effective Jan 13, 2009 for non-payment.” See Ex. 2 to Faulkner Dec., Dkt. 41-4. Bostock did not make any payment in response to that notice, nor did she attempt to reinstate the policy until shortly after she learned of the flood. See Ex Faulkner Dec., Ex 6, at ¶ 90.

         Before Safeco canceled Bostock's coverage under the policy, Bostock often paid her monthly premium late. The one-year policy period began with a March 2008 renewal. The renewal notice indicated that Bostock would need to pay $357.09 in arrearages on her account to prevent the policy from being canceled. See Id. (“A $357.09 payment for the outstanding bill on your account must be postmarked by March 16, 2008 to prevent cancellation of the policies on your account.”). Bostock paid the arrearages, and then continued to make monthly payments during most of 2008. These payments were typically ...

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