1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GENET HABTEMARIAM, No. 2:16-cv-01189-DC-AC 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANT PNC

BANK, NATIONAL ASSOCIATION’S

14 PNC BANK, NATIONAL MOTION FOR LEAVE TO FILE A SECOND ASSOCIATION, et al., MOTION FOR SUMMARY JUDGMENT 15 Defendants. (Doc. No. 183) 16 17 This matter is before the court on Defendant PNC Bank, National Association’s (“PNC 18 Bank”) motion for leave to file a second motion for summary judgment. (Doc. No. 183.) Pursuant 19 to Local Rule 230(g), the pending motion was taken under submission to be decided on the 20 papers. (Doc. No. 191.) For the reasons explained below, the court will grant Defendant PNC 21 Bank’s motion. 22 On June 2, 2016, the court issued an initial pretrial scheduling order setting the fact 23 discovery deadline “no later than 365 days from the filing of the original complaint.” (Doc. No. 4 24 at 3.) Pursuant to that scheduling order, the deadline to file dispositive motions was “no later than 25 180 days after the close of fact discovery.” (Id. at 5.) That scheduling order also directed the 26 parties to address all issues they wished to resolve on summary judgment in one motion or cross- 27 motion and to seek leave of court to file any additional motion for summary judgment. (Id.) 28 On May 22, 2020, Defendants PNC Bank and Vida Capital Group, LLC (“Vida Capital 1 Group”) filed a motion for summary judgment in their favor on all of Plaintiff’s claims brought 2 against them. (Doc. Nos. 116, 118.) On May 17, 2021, the court denied the motion for all but one 3 claim. (Doc. No. 122.) 4 Several modifications have been made to the initial scheduling order, including after the 5 court’s ruling on Defendants’ first motion for summary judgment. (See e.g., Doc. Nos. 101, 110, 6 115, 175). Most recently, on March 22, 2024, the court granted Defendants PNC Bank and Vida 7 Capital Group’s joint administrative motion to amend the scheduling order to reopen and extend 8 the fact discovery cutoff deadline under Federal Rule of Civil Procedure 16. (Doc. No. 175.) The 9 court reopened discovery for the limited purpose of allowing Defendants PNC Bank and Vida 10 Capital Group to take discovery on Plaintiff’s alleged damages, including but not limited to the 11 following topics: “(1) Plaintiff’s rental of the Property located at 7 Shipman Court, Sacramento, 12 CA 95823, and any income derived therefrom; (2) Plaintiff’s alleged continued servicing of the 13 mortgage currently held by Gateway Bank, N.A., and (3) any additional damages Plaintiff 14 allegedly suffered since discovery closed in 2019.” (Id. at 1–2.) The court ordered Defendants 15 PNC Bank and Vida Capital Group to complete this limited discovery by no later than 150 days 16 after the order was signed on March 22, 2024, meaning by August 19, 2024. (Id. at 2.) 17 Consequently, the deadline to file dispositive motions is February 18, 2025, 180 days after the 18 August 19, 2024 discovery deadline. 19 On October 14, 2024, Defendant PNC Bank filed the pending motion for leave to file a 20 second motion for summary judgment. (Doc. No. 183.) Defendant PNC Bank’s proposed second 21 motion for summary judgment is based solely on a statute of limitations defense, which was not 22 raised in its first motion for summary judgment. (Id. at 6; see also Doc. No. 183-1.) Defendant 23 PNC Bank contends that at Plaintiff’s renewed deposition on July 26, 2024 and August 26, 2024, 24 she “revealed, for the first time, that in 2011 Plaintiff (a) discovered that PNC was not treating her 25 second mortgage loan as forgiven or canceled, and (b) suffered damage from PNC’s treatment of 26 the loan as still due and delinquent.” (Doc. No. 183 at 2.) Therefore, Defendant PNC Bank 27 intends to argue Plaintiff’s claims against it “accrued no later than 2011 and that the applicable 28 statute of limitation[s] expired on her claims against PNC before she filed this suit in May 2016.” 1 (Id.) Plaintiff did not file an opposition to Defendant PNC Bank’s motion for leave to file a 2 second motion for summary judgment. 3 Federal Rule of Civil Procedure 56 does not limit the number of summary judgment 4 motions that a party may file. See Fed. R. Civ. P. 56. The Ninth Circuit has explicitly held 5 “district courts have discretion to entertain successive motions for summary judgment.” Hoffman 6 v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010). Because the “denial of summary judgment 7 does not preclude a contrary later grant of summary judgment,” allowing a party to “file a second 8 motion for summary judgment is logical, and it fosters the ‘just, speedy, and inexpensive’ 9 resolution of suits.” Id. (quoting Fed. R. Civ. P. 1). “[A] successive motion for summary 10 judgment is particularly appropriate on an expanded factual record.” Id. Nevertheless, “district 11 courts retain discretion to ‘weed out frivolous or simply repetitive motions.’” Id. 12 Here, Defendant PNC Bank seeks to move for summary judgment a second time based 13 solely on a statute of limitations defense not raised in its initial motion for summary judgment. 14 (Doc. No. 183 at 6.) Defendant PNC Bank contends that new evidence—Plaintiff’s deposition 15 testimony from July and August 2024—shows that Plaintiff’s claims against Defendant PNC 16 Bank accrued in 2011 when she allegedly became aware of harm to her credit caused by PNC’s 17 reporting of her “cancelled” loan. (Doc. No. 183-1 at 4.) Defendant PNC Bank asserts that the 18 statute of limitations on Plaintiff’s claims is four years. (Id. at 8.) Because Plaintiff filed her 19 complaint in 2016, Defendant PNC Bank asserts her claims are barred by the applicable statute of 20 limitations. As noted, Plaintiff did not file an opposition to Defendant PNC Bank’s pending 21 motion. Pursuant to Local Rule 230(c), the court construes Plaintiff failure to file a timely 22 opposition as a non-opposition to the motion. 23 In light of the expanded factual record, the court will exercise its discretion and will grant 24 Defendant PNC Bank’s motion for leave to file a second motion for summary judgment.1 The 25 court finds the proposed second motion for summary judgment is neither frivolous nor repetitive. 26

27 1 The court notes that a modification of the scheduling order is not required for Defendant PNC Bank to file a second motion for summary judgment because the February 18, 2025 filing 28 deadline has not passed. 1 Accordingly, Defendant PNC Bank’s motion for leave to file a second motion for 2 | summary judgment (Doc. No. 183) is granted. 3 4 IT IS SO ORDERED. □ 5 | Dated: _ December 23, 2024 EIU os Dena Coggins 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28