Rosson v. American Express National Bank

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
NORMAN ROSSON,
Plaintiff,
v.
AMERICAN EXPRESS NATIONAL BANK,
Defendant.
MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
STRIKE SECOND AMENDED
COMPLAINT (DOC. NO. 32) AND
GRANTING MOTION FOR LEAVE
TO FILE SECOND AMENDED
COMPLAINT
(DOC. NO. 35)
Case No. 2:25-cv-00140
District Judge David Barlow
Magistrate Judge Daphne A. Oberg
Norman Rosson, proceeding without an attorney, brought this action against
American Express National Bank for reducing his credit card limit on his account with
the bank.1 After screening Mr. Rosson’s initial complaint, the court allowed him to file
an amended complaint.2 Mr. Rosson did so, asserting a single claim for breach of the
implied covenant of good faith and fair dealing.3 American Express then answered.4
1 (Compl., Doc. No. 7.)
2 (See Mem. Decision & Order Permitting Am. Compl. and Temporarily Granting Mot. to
Waive Filing Fee, Doc. No. 11.)
3 (Am. Compl., Doc. No. 12.)
4 (Def.’s Answer & Affirmative & Other Defenses to Pls.’ Am. Compl. (Answer to Am.
Compl.), Doc. No. 21.)
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Six weeks later, Mr. Rosson filed a second amended complaint, adding allegations and
four additional claims.5
The parties now file competing motions. American Express moves to strike the
second amended complaint as untimely and filed without leave of the court or the
bank’s consent.6 Mr. Rosson opposes7 and separately moves for leave to file the
second amended complaint.8 American Express opposes granting leave to amend,
arguing the second amended complaint is futile and would prejudice the bank.9
Because the bank’s arguments are more appropriately addressed in the motion to
dismiss or joinder contexts, and because there is no other basis to deny leave to
amend, Mr. Rosson’s motion for leave to amend is granted—and American Express’s
motion to strike is denied.
LEGAL STANDARDS
Under Rule 15 of the Federal Rules of Civil Procedure, a party may amend its
pleading “once as a matter of course,” within twenty-one days after serving it or
5 (See Second Am. Compl. ¶¶ 25–54, Doc. No. 29 (adding allegations and new claims
for “waiver of arbitration by litigation conduct,” “conditional declaratory relief,” “negligent
misrepresentation/fraudulent omission,” and “tortious harm to commercial reputation
and trademarked identity”).)
6 (Def.’s Mot. to Strike Second Am. Compl. (Mot. to Strike), Doc. No. 32.)
7 (Pl.’s Opp’n to Mot. to Strike, Doc. No. 33.)
8 (Pl.’s Mot. For Leave to File Second Am. Compl. (Mot. to Am.), Doc. No. 35.)
9 (Def.’s Opp’n to Mot. to Am., Doc. No. 40.)
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twenty-one days after a responsive pleading or motion.10 “In all other cases, a party
may amend its pleading only with the opposing party’s written consent or the court’s
leave.”11 Rule 15 instructs courts to “freely give leave when justice so requires.”12 “The
purpose of the Rule is to provide litigants the maximum opportunity for each claim to be
decided on its merits rather than on procedural niceties.”13 “Refusing leave to amend is
generally only justified upon a showing of undue delay, undue prejudice to the opposing
party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously
allowed, or futility of amendment.”14 Prejudice to the opposing party is the “most
important” factor in deciding whether to permit amendment.15
Because Mr. Rosson proceeds without an attorney (pro se), his filings are
liberally construed and held “to a less stringent standard than formal pleadings drafted
by lawyers.”16 Still, pro se plaintiffs must follow the same rules of procedure governing
other litigants.17
10 Fed. R. Civ. P. 15(a)(1).
11 Fed. R. Civ. P. 15(a)(2).
12 Id.
13 Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotation
marks omitted).
14 Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (citation omitted).
15 Minter, 451 F.3d at 1207.
16 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
17 Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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ANALYSIS
As a threshold matter, Mr. Rosson’s second amended complaint is not permitted
as a matter of course, where he filed it forty-three days after American Express
answered.18 However, notwithstanding Mr. Rosson’s failure to secure the court’s leave
before filing the second amended complaint, it is in the interest of justice to grant leave
now.
American Express asserts no grounds sufficient to merit denying Mr. Rosson’s
motion for leave to amend. First, American Express’s futility arguments are better
suited for a motion to dismiss. Although leave to amend may be denied due to futility
alone,19 courts often decline to consider futility if it would be more appropriately
addressed in dispositive motions.20 Particularly where the same arguments could be
raised in a motion to dismiss, courts have found that addressing futility in a motion to
18 (See Def.’s Answer to Am. Compl., Doc. No. 21 (filed October 2, 2025); Second Am.
Compl., Doc. No. 29 (filed November 14, 2025).) Mr. Rosson clearly did not have the
bank’s consent to file a second amended complaint. (See Def.’s Opp’n to Mot. to Am.,
Doc. No. 40.)
19 See Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007).
20 See, e.g., Lambe v. Sundance Mountain Resort, No. 2:17-cv-00011, 2018 U.S. Dist.
LEXIS 162268, at *7–8 (D. Utah Sept. 21, 2018) (unpublished) (declining to engage in a
futility analysis where “the viability of [the new] claim is more appropriately addressed in
the context of a dispositive motion as opposed to a motion for amendment”); Stender v.
Cardwell, No. 07-cv-02503, 2011 U.S. Dist. LEXIS 38502, at *10–11 (D. Colo. Apr. 1,
2011) (unpublished) (declining to consider futility arguments based on failure to state a
claim, where the opposing party failed to assert undue prejudice and could raise the
same arguments in the context of a motion to dismiss).
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amend “place[s] the cart before the horse,” and “defendants may be better served by
waiting to assert Rule 12 motions until the operative complaint is in place.”21
Here, American Express contends the four new claims in the second amended
complaint are futile because they do not state a cause of action, they seek a
nonjusticiable advisory opinion, or they are inadequately pleaded.22 These same
arguments could be raised in a motion to dismiss under Rule 12 of the Federal Rules of
Civil Procedure. Indeed, they would be more appropriately addressed in the context of
a motion to dismiss, where they could be fully briefed (and opposed)—rather than
forced into a Rule 15(a) opposition brief.
Second, American Express fails to show the second amended complaint would
cause undue prejudice. In arguing prejudice, the bank complains the second amended
complaint does not name companies that “may be necessary parties.”23 Specifically,
American Express notes Mr. Rosson claims losses based on one of his company’s
accounts, yet he has not “identified” any companies as plaintiffs.24 If the second
amended complaint is dismissed, the bank argues, Mr. Rosson could just refile his
21 Obeslo v. Great-West Cap. Mgmt., Nos. 16-cv-00230 & 16-cv-01215, 2017 U.S. Dist.
LEXIS 223891, at *10 (D. Colo. Feb. 21, 2017) (unpublished), R. & R. adopted, 2017
U.S. Dist. LEXIS 223892 (D. Colo. Mar. 14, 2017) (unpublished).
22 (Def.’s Opp’n to Mot. to Am. 3–5, Doc. No. 40.)
23 (Id. at 5–6 (emphasis added).)
24 (Id.) American Express uses the term “identify,” which, based on its argument,
appears to mean Mr. Rosson has not named the account-holding companies as
plaintiffs in this case. As explained below, this is an argument for failure to join a
necessary party (i.e., nonjoinder) under Rule 19.
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claims through one of those companies. As a result, American Express would not be
fully relieved of Mr. Rosson’s claims.25
This argument is flawed in several ways. For one, American Express cites no
legal authority in support; it merely asserts the second amended complaint does not
identify companies that may be necessary parties. Setting this aside, Mr. Rosson does
not name any companies as plaintiffs in his amended complaint either.26 In other
words, American Express contends the second amended complaint will result in a
prejudice that already exists irrespective of whether leave to amend is allowed. Where
this claim of prejudice is not tied to the proposed pleading, it is not a reason to deny
leave to amend. Finally, the mechanism for adding a party is joinder, not denial of leave
to amend.27 In effect, the bank identifies no prejudice at all.28 It merely masks an
25 (Def.’s Opp’n to Mot. to Am. 6, Doc. No. 40.)
26 Indeed, American Express raises this point as an affirmative defense to the amended
complaint. (Answer to Am. Compl. 13, Doc. No. 21 (arguing Mr. Rosson’s amended
complaint “fails to join required and indispensable parties” pursuant to Rule 19).)
27 See Fed. R. Civ. P. 19.
28 In its reply in support of striking the second amended complaint, American Express
briefly—and for the first time—argues Mr. Rosson’s failure to satisfy Rule 15(a)(2)’s
requirements prejudiced the bank “by stripping it of its due process rights.” (Reply in
Supp. of Mot. to Strike 2–3, Doc. No. 34.) The bank offers no insight as to what rights it
lost, exactly. And, regardless, this late, undeveloped argument is waived. See Aptive
Env’tal, LLC v. Town of Castle Rock, 959 F.3d 961, 986 (10th Cir. 2020) (holding
arguments raised for the first time in a reply brief are waived).
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unsupported argument for nonjoinder as prejudice in the context of an opposition to a
motion to amend.29
Finally, American Express does not contend any undue delay, bad faith, or
dilatory motive by Mr. Rosson. And nothing suggests these factors, which may
otherwise justify the denial of leave to amend, are present here. In sum, the court
declines to engage in a futility analysis at this stage and finds American Express has not
demonstrated prejudice from the second amended complaint. Where there is no other
basis to deny Mr. Rosson’s motion, justice requires granting leave to amend.30 And
denying American Express’s motion to strike is appropriate in light of this leave.
CONCLUSION
American Express’s motion to strike31 is denied, and Mr. Rosson’s motion to
amend32 is granted. The court directs the clerk to refile docket number 29 as the
29 See Citizen Potawatomi Nation v. Norton, 248 F.3d 993, 997 (10th Cir. 2001) (“The
question of whether an absent party is necessary and/or indispensable is resolved by
applying Rule 19 of the Federal Rules of Civil Procedure.” (citation omitted)); see also
Fed. R. Civ. P. 12(b)(7) (providing for dismissal of an action for “failure to join a party
under Rule 19”).
30 Mr. Rosson specifically asks for leave to amend be granted with retroactive effect
(nunc pro tunc), recognizing that he filed the second amended complaint before
obtaining such leave. Although the motion for leave to amend the complaint is granted,
there is no basis for any nunc pro tunc ruling. See Roman Catholic Archdiocese of San
Juan, Puerto Rico v. Acevedo Feliciano, 589 U.S. 57, 65 (2020) (explaining federal
courts may issue nunc pro tunc orders, or “now for then” orders, to reflect what has
already occurred but was not entered in the record due to “inadvertence of the court,”
but such orders “cannot make the record what it is not” (citations omitted)).
31 (Doc. No. 32.)
32 (Doc. No. 35.)
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second amended complaint within seven days. Once filed on the docket, the second
amended complaint will be the operative pleading in this case. American Express’s
deadline to respond to the second amended complaint is March 26, 2026.
DATED this 26th day of February, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
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