Opinion
CASE NO. 14cv2774-WQH-BGS
05-27-2016
KAREN DUELL, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA; THE DUNNING LAW FIRM, Defendant.
ORDER :
The matter before the Court is the Motion for Leave to File a Second Amended Complaint (ECF No. 50) filed by Plaintiff Karen Duell.
I. Background
On November 20, 2014, Plaintiff initiated this action by filing a Complaint, alleging claims under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), the Rosenthal Fair Debt Collection Practices Act, California Civil Code §§ 1788-1788.32 ("Rosenthal Act"), and the California Consumer Credit Reporting Agencies Act § 1785 et seq ("CCCRAA"). (ECF No. 1).
On January 19, 2015, Plaintiff filed a First Amended Complaint alleging the same causes of action. (ECF No. 9). On February 5, 2015, Defendant The Dunning Law Firm ("Defendant Dunning") filed a motion to dismiss Counts I and II of the First Amended Complaint. (ECF No. 11). On February 6, 2015, Defendant First National Bank of Omaha ("Defendant FNBO") filed a motion to dismiss Count III of the First Amended Complaint. (ECF No. 12).
On July 29, 2015, the Court issued an Order granting in part and denying in part Defendant Dunning's motion to dismiss and concluding that Plaintiff has alleged sufficient facts to state a claim pursuant to the FDCPA § 1692e(9) (10) and the Rosenthal Act § 1788.17 and denying Defendant FNBO's motion to dismiss on the grounds that Plaintiff has alleged sufficient facts to state a claim pursuant to the CCCRAA. (ECF No. 25).
On November 20, 2015, the Magistrate Judge issued the Scheduling Order Regulating Discovery and Other Pre-Trial Proceedings. (ECF No. 45). The Magistrate Judge ordered, "Any motion to join other parties, to amend the pleadings, or to file additional pleadings shall be filed by December 18, 2015." Id. at 1. The Magistrate Judge ordered, "All fact discovery shall be completed by all parties by March 18, 2016." Id. The Order states, "the dates and times set forth herein will not be modified except for good cause shown." Id. at 5.
On April 15, 2016, Plaintiff filed a motion for leave to file a Second Amended Complaint. (ECF No. 50). Plaintiff requests leave of the Court to file a Second Amended Complaint to include a cause of action under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq ("FCRA") because during discovery Defendant FNBO produced a document that establishes for the first time a violation of the FCRA by FNBO. (ECF No. 50-1 at 2). Plaintiff states,
At this stage of the litigation and due to the nature of the requested amendment, FNBO's strategy in defending this matter will be minimally affected since Plaintiff's previous allegation brought pursuant to the CCCRAA is based on similar claims and/or defenses. Additionally, the Parties have discussed the proposed amendment in detail . . . thus, Defendant should not be unduly surprised. Finally, Plaintiff does not anticipate additional discovery in relation to the amendment since the amended Complaint would not materially change any position FNBO has taken.Id. at 4.
On April 25, 2016, Defendant FNBO filed an opposition to the motion for leave to file a Second Amended Complaint. (ECF No. 51). Defendant FNBO contends that Plaintiff has not established good cause to amend the scheduling order, and therefore the liberal amendment standards of Federal Rule of Civil Procedure 15 should not apply. Id. at 3. On May 16, 2016, Plaintiff filed a reply. (ECF No. 52).
II. Discussion
"Once the district court has filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 which established a timetable for amending pleadings that rule's standards control." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-608 (9th Cir. 1992). Federal Rule of Civil Procedure 16 provides that a district court
(b) . . . shall . . . enter a scheduling order that limits the time
(1) to join other parties andto amend the pleadings;
(2) to file and hear motions; and
(3) to complete discovery.
. . .
A schedule shall not be modified except by leave of . . . [the district court] upon a showing of good cause.Fed. R. Civ. P. 16(b). Because a scheduling order was entered in this case on November 20, 2015, Plaintiff's motion for leave to amend is governed by Rule 16(b). See Johnson, 975 F.2d at 608 (citing Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987) ("party seeking to amend pleading after date specified in scheduling order must first show 'good cause' for amendment under Rule 16(b), then, if 'good cause' be shown, the party must demonstrate that amendment was proper under Rule 15.")).
Plaintiff asserts that Defendant FNBO recently produced documents which verify that Defendant FNBO inaccurately reported information to credit bureaus regarding Plaintiff's payment history in violation of the FCRA. Plaintiff asserts that prior to receiving these documents, Plaintiff did not have sufficient grounds to establish an FCRA claim. The Court concludes that Plaintiff has demonstrated good cause to amend the First Amended Complaint.
Because the Court finds that Plaintiff has shown good cause, the Court must consider whether leave to amend is proper under Federal Rule of Civil Procedure 15. See Johnson, 975 F.2d at 608. Federal Rule of Civil Procedure 15 mandates that leave to amend "be freely given when justice so requires." Fed. R. Civ. P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court offered several factors for district courts to consider in deciding whether to grant a motion to amend under Rule 15(a):
In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be 'freely given.'Foman, 371 U.S. at 182; see also Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004) (citing Forman factors).
"Not all of the [Foman] factors merit equal weight. As this circuit and others have held, it is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, 316 F.3d at 1052 (citations omitted). "The party opposing amendment bears the burden of showing prejudice." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, 316 F.3d at 1052.
Defendant FNBO asserts that the facts of the case have been known to Plaintiff since prior to the filing of the First Amended Complaint, therefore Plaintiff has unduly delayed in requesting leave to amend. Defendant asserts that there is no newly discovered evidence that would have prevented Plaintiff from bringing the new alleged claim two years and Defendant contends that it will be prejudiced by having to defend a new cause of action.
After consideration of the submissions of the parties, the Court concludes that Defendants have not made a sufficiently strong showing of the Foman factors to overcome the presumption of Rule 15(a) in favor of granting leave to amend. See Eminence Capital, 316 F.3d at 1052. /// ///
IT IS HEREBY ORDERED that the motion for leave to file a Second Amended Complaint (ECF No. 50) is granted. No later than fourteen (14) days from the date this Order is filed, Plaintiff may file the proposed Second Amended Complaint which is attached to the motion. DATED: May 27, 2016
/s/_________
WILLIAM Q. HAYES
United States District Judge