United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.
the Court is pro se Plaintiff Matthew Ford's
“Motion for Leave to File First Amended
Complaint” (the “Motion”) (ECF No. 5). For
the reasons stated, the Court GRANTS Ford's Motion.
Matthew Ford filed this case against Defendant Pennsylvania
Higher Education Assistance Agency, d/b/a FedLoan Servicing
(“PHEAA”), in the 44th Judicial District Court of
Dallas County, Texas, on August 27, 2018. Original Pet. (ECF
No. 1-5). Ford's claims against PHEAA, a student loan
servicer, arise out of PHEAA's alleged unfair and
deceptive student loan servicing practices. Id. at
1, ¶ 1. Ford pleaded five causes of action in his
original petition: (1) a violation of the Texas Deceptive
Trade Practices Act; (2) a violation of the Texas Debt
Collection Act; (3) fraud; and (4) civil conspiracy.
Id. at 12-15, ¶¶ 55-70. Ford twice amended
his petition in state court. See 1st Am. Pet. (ECF
No. 1-7); 2d Am. Pet. (ECF No. 1-11). Ford's second
amended petition, filed on October 8, 2018, added a
breach-of-contract claim against PHEAA for the alleged breach
of a contract between PHEAA and the United States Department
of Education (the “DOE”). 2d Am. Pet. at 18-19,
¶¶ 82-86. Ford also added claims for unjust
enrichment and breach of fiduciary duty against PHEAA arising
out of the same contract with the DOE, as well as a claim for
negligent misrepresentation. Id. at 19-21,
days after Ford filed his second amended petition in state
court, PHEAA filed its notice of removal under 28 U.S.C.
§ 1446 in this Court. Removal Notice (ECF No. 1). In its
notice of removal, PHEAA claims that “[t]his Court has
federal question jurisdiction [under 28 U.S.C. § 1331]
because Plaintiff's Second Amended Petition alleges a
breach of contract claim controlled by federal law.”
Id. at 1-2, ¶ 2. With respect to the remaining
state law claims, PHEAA avers that because they “share
a common nucleus of operative fact with [Ford's] federal
breach of contract claim, the Court has supplemental
jurisdiction over those claims.” Id.
within six days of PHEAA filing its notice of removal, Ford
filed the Motion and a motion to remand. Mots. (ECF Nos. 5
& 6). As an attachment to the Motion, Ford filed a
proposed amended complaint voluntarily dismissing his
breach-of-contract, unjust enrichment, and
breach-of-fiduciary-duty claims, and adding a claim for usury
in violation of Texas Finance Code Chapter 306. Proposed Am.
Compl. 12-15, ¶¶ 59-76 (ECF No. 5-1). PHEAA filed a
response arguing that Ford's proposed amended complaint
is an attempt at forum manipulation and that the Court should
not grant Ford leave to amend. Resp. at 3-4 (ECF No. 9).
Standard and Analysis
there is no scheduling order in place to govern the deadline
for amending pleadings, leave to amend is determined
according to the standard set forth in Federal Rule of Civil
Procedure 15. Greco v. Nat'l Football League,
116 F.Supp.3d 744, 753 (N.D. Tex. 2015). Under Rule 15, a
party “may amend its pleading once as a matter of
course” if it amends within certain deadlines set forth
in the rule. Fed.R.Civ.P. 15(a). When a party is not amending
as a matter of course under Rule 15(a) but still seeks to
amend, a court must freely grant a party leave to amend and
should do so “when justice so requires.”
Fed.R.Civ.P. 15(a)(2). “Determining when ‘justice
so requires' rests within the sound discretion of the
trial court.” Chitimacha Tribe of La. v. Harry L.
Laws Co., Inc., 690 F.2d 1157, 1163 (5th Cir. 1982)
(citation omitted). Further, Rule 15's language
“evinces a bias in favor of granting leave to amend. .
. . Although the district court should err on the side of
allowing amendment, leave to amend should not be given
automatically.” Id. (citations omitted). Thus,
a court should consider five factors in determining whether
to grant a party leave to amend its complaint: “1)
undue delay, 2) bad faith or dilatory motive, 3) repeated
failure to cure deficiencies by previous amendments, 4) undue
prejudice to the opposing party, and 5) futility of the
amendment.” Smith v. EMC Corp., 393 F.3d 590,
595 (5th Cir. 2004) (citing Rosenzweig v. Azurix
Corp., 332 F.3d 854, 864 (5th Cir. 2003) (in turn citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). In the
absence of any of these factors, the court should grant a
party leave to amend. Id. (citing Foman,
371 U.S. at 182).
cannot establish that Ford unduly delayed in seeking to amend
his complaint. For the passage of time to bar a party's
request for leave to amend its pleadings, the amount of time
passed must constitute “undue delay.” Lewis
v. Fresne, 252 F.3d 352, 360 (5th Cir. 2001).
“[D]elay alone is an insufficient basis for denial of
leave to amend: The delay must be undue, i.e., it
must prejudice the nonmoving party or impose unwarranted
burdens on the court.” Mayeaux v. La. Health Serv.
and Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004)
(quoting Stripling v. Jordan Prod. Co., LLC, 234
F.3d 863, 872 (5th Cir. 2000)); see also Greco, 116
F.Supp.3d at 755 (the lack of a scheduling order weighs
“in favor of finding no undue delay, dilatory motive,
or bad faith on the part of Plaintiffs . . . .”) Here,
there has been no delay, let alone undue delay. Ford filed
the Motion within six days of PHEAA removing the case. The
Court has not entered a scheduling order, and there is no
trial date. The proposed amendment would not cause prejudice
to PHEAA or impose any burdens on the Court.
Bad Faith or Dilatory Motive
also has not demonstrated Ford acted in bad faith or with a
dilatory motive in seeking leave to amend. This case's
procedural posture does not support a finding of bad faith or
dilatory motive where, as stated, there is no scheduling
order and the parties have taken little action in the case.
See Greco, 116 F.Supp.3d at 755. Also, the Court
does not find Ford attempted to manipulate the forum. In
Hernandez v. Central Power and Light, the district
court granted a plaintiff leave to amend a complaint to drop
a claim that the defendants argued was preempted by federal
law and thus provided a basis for removal jurisdiction. 880
F.Supp. 494, 496 (S.D. Tex. 1994). Like in the present case,
the defendant opposed plaintiff's motion for leave to
amend on the basis that plaintiff was attempting to
“manipulate the forum.” Id. at 495. The
court identified several reasons why any forum manipulation
was “minimal” and not a basis to deny leave to
amend: (1) the case was not originally filed in federal court
by the plaintiff; (2) the plaintiff did not plead an overt
federal claim in state court; and (3) the record indicated
plaintiff never wanted to be in federal court and never
expressly attempted to assert a federal claim. Id.
at 496. Here, like in Hernandez, Ford originally
filed his case in state court and did not plead an overt
federal claim there, ...