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ABELS v. JBC LEGAL GROUP

June 23, 2005.

Raymond Abels, et al., Plaintiff(s),
v.
JBC Legal Group, P.C., et al., Defendant(s).



The opinion of the court was delivered by: JAMES WARE, District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
I. INTRODUCTION
Lead Plaintiff, Raymond Abels ("Plaintiff" or "Abels"), brings this case as a class action against Defendant JBC Legal Group, RC. ("JBC"), a corporation, and Jack Boyajian, an individual (collectively "Defendants") for violations of the Federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), California Civil Code § 1788 et. seq. ("CA FDCPA" or "Rosenthal Act"), and the California Business and Professional Code §§ 17200 et. seq ("17200").

Plaintiff now moves for leave to file an amended complaint. Plaintiff seeks to add Outsource Recovery Management, Inc. ("Outsource") as a party defendant because Plaintiff has discovered Outsource is the client and agent of JBC, and the true owner of the debt giving rise to the complaint. In the same motion, Plaintiff is voluntarily withdrawing its 17200 claim.

  A hearing was held on June 13, 2005. For the reasons set forth below, Plaintiff's Motion for Leave to File Amended Complaint is GRANTED. II. BACKGROUND

  Plaintiff brings this case as a class action alleging violations of: Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, California Civil Code § 1788, and California Business and Professional Code § 17200 et. seq. The FDCPA regulates the behavior of collection agencies attempting to collect a debt on behalf of another. The CA FDCPA regulates collection agencies and original creditors attempting to collect debts on behalf of another or on their own behalf. Section 17200 prohibits debt collectors from using false or misleading communications in an attempt to collect a debt. Plaintiff and the purported class seek actual damages, statutory damages, attorney's fees, costs, and equitable relief pursuant to FDCPA, CA FDCPA, and § 17200. (Complaint ¶¶ 1-2.)

  The alleged violations stem from Defendants' written communications attempting to collect an alleged debt from Plaintiff, and all others similarly situated in California. Abels allegedly owed a consumer debt for a check that was returned in 1993, some 11 years ago. On April 24, 2004, Defendants sent two collection letters to Plaintiff. (Complaint ¶ 3.) Plaintiff contends these letters were false, deceptive and misleading, threatened to take action that cannot be or was not intended to be taken, and attempted to collect amounts not authorized by contract or law. (Motion ¶¶ 2-3.)

  Plaintiff's suit was filed on June 15, 2004, identifying JBC and Jack Boyajian as Defendants. (Complaint ¶ 1.) This Court set forth an initial Scheduling Order on November 11, 2004, setting deadlines for disclosure of expert witnesses, discovery, and pre-trial report. (Opp'n at 2.) In March of 2005, counsel for Plaintiff and Defendants discussed an interrogatory involving the procedure Defendants use when sending letters attempting to collect on alleged debts. (Coleman Decl. ¶ 2.) Counsel for Defendants, informally, identified Outsource as Abels' creditor, "even though it was not the subject of a discovery request." (Id.) Unable to reach a stipulation to amend the complaint, Plaintiff filed this Motion for Leave to File Amended Complaint on April 22, 2005. (Motion at 2.)

  III. STANDARDS

  Federal Rule of Civil Procedure 15(a) provides that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." The Ninth Circuit has instructed that the policy favoring amendments "is to be applied with extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citations omitted). But amendments "seeking to add claims are to be granted more freely than amendments adding parties." Union Pac. R.R. Co. v. Nevada Power Co., 950 F.2d 1429, 1432. The four factors commonly used to determine the propriety of a motion for leave to amend are bad faith, undue delay, prejudice to the opposing party, and futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); DCD Programs, 833 F.2d at 186. An amendment may relate back to the time of the filing of the original complaint under the standards set out in Federal Rule of Civil Procedure 15(c).

  IV. DISCUSSION

  The Court applies a policy of "extreme liberality" in favor of Rule 15 amendments and determines the propriety of Plaintiff's motion under the four commonly used conditions to grant leave to amend. In addition, the Court follows Rule 15(c) "relation back" requirement with respect to amendments that are filed after the running of the statute of limitations.

  A. Plaintiff's Amendment Is Not In Bad Faith.

  Leave to amend may be denied if the amendment is introduced solely for delay or improper purpose. Foman, 371 U.S. at 182. Here, Plaintiff's amendment is introduced to add the true owner of the underlying debt, Outsource. Plaintiff claims that Defendant JBC was acting as both the agent and client of Outsource. (Motion at 3.) Outsource is clearly a relevant party to the litigation, since any litigation outcome would affect its ownership interests over the alleged underlying debt. Plaintiff did not appear to know of Outsource until March of 2005 (Opp'n at 9), leaving unreasonable the assumption that Plaintiff acted with a dilatory motive. See DCD Programs, 833 F.2d at 187 (finding no bad faith when satisfactory explanation for delay). Defendants do not dispute Plaintiff's motive. Thus, the Court finds no reason to believe that Plaintiff's amendment is brought in bad faith.

  B. Plaintiff Did Not Unduly Delay In Filing This Amendment.

  In the Ninth Circuit, delay alone is insufficient to provide grounds for leave to amend, though it is a relevant factor. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (footnotes omitted). Plaintiff's motion for amendment to add Outsource as a defendant comes over ten months after the original complaint was filed. (Opp'n at 10.) However, the Court notes that the discovery deadline, August 8, 2005, has not yet passed. See Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir. 1998) (leave to amend sought on eve of discovery deadline properly denied). Moreover, it appears that Plaintiff did not know of Outsource until Defendants' counsel identified the company in March of 2005. (Opp'n at 9.) On April 22, ...


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