United States District Court, S.D. California
August 11, 2005.
JAMES McDONALD, Plaintiff,
BONDED COLLECTORS, L.L.C., Defendant.
The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED
Plaintiff James McDonald filed this consumer credit lawsuit
against Defendant Bonded Collectors, L.L.C., on April 4, 2005.
The original complaint alleged violations of both the federal
statutes regulating debt collection practices. Plaintiff now
seeks leave to file a first amended complaint to add allegations
on behalf of a class of plaintiffs who received the same form
letter. District Judge Whelan referred the pretrial motion to
this court for decision. 28 U.S.C. § 636(b)(1)(A). The court
ordered the matter submitted without oral argument. CivLR
7.1.d.1. For the reasons stated below, the court grants
plaintiff's motion for leave to amend.
Plaintiff incurred a debt of approximately $3,000 at Sears
department store. Compl. ¶ 16 & Attach. 1. The debt was assigned
to Defendant for collection. Compl. ¶ 19. Defendant sent
Plaintiff a letter in an attempt to collect the debt. Compl.
Attach. 1. In this lawsuit, Plaintiff alleges that the language
of the letter violated "numerous and multiple" provisions of both
federal the Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq., and the state Rosenthal Fair Debt Collection Practices
Act, Cal. Civ. Code § 1788 to 1788.32. Compl. ¶¶ 27 & 30. Plaintiff now seeks leave to file an amended complaint to bring
class allegations. Defendant opposes the motion on the ground
that the state law expressly prohibits a class action remedy.
After a defendant has filed an answer, Rule 15 of the Federal
Rules of Civil Procedure allows a plaintiff to amend the
complaint by leave of court. Fed.R.Civ.P.15(a). "Leave shall be
freely given when justice so requires." Id.; Forman v. Davis,
371 U.S. 178, 182 (1962). Factors indicating that the motion is
improper include bad faith, unfair prejudice to defendant, and
prior amendments. Allen v. City of Beverly Hills, 911 F.2d 367,
373 (9th Cir. 1990).
When analyzed under this standard, the factors weigh strongly
in Plaintiff's favor. The application is timely. The original
complaint was filed in April 2005, and Plaintiff filed the motion
to amend three months later in June 2005. The case is in the very
early pretrial proceedings and the court has not yet issued a
scheduling order. As there is no discernable prejudice to
Defendant, the traditional factors demonstrate that the motion
should be granted.
Nonetheless, an amendment would be futile if the claim would
fail as a matter of law. Gabrielson v. Montgomery Ward & Co.,
785 F.2d 762, 766 (9th Cir. 1986) ("any amendment would have been
futile in that it could be defeated on a motion for summary
judgment."). Defendant argues that the proposed amendment would
be futile because the state statute permits only individual
actions and does not provide for a class action remedy. Defendant
cites California Civil Code § 1788.30, which states that a debt
collector "shall be liable . . . only in an individual action."
This argument, however, overlooks an amendment to the statute.
Abels v. JBC Legal Group, P.C., 227 F.R.D. 541, 548 (N.D. Cal.
2005). In 1999, the state legislature added Civil Code § 1788.17
to provide that, "[n]otwithstanding any other provision of this
title, every debt collector . . . shall be subject to the
remedies in Section 1692k of, Title 15 of the United States
Code." Cal. Civ. Code § 1788.17. In turn, the federal statute
provides for class action remedies. 15 U.S.C. § 1692k(a)(2)(B);
e.g., Irwin v. Mascott, 370 F.3d 924 (9th Cir. 2004) (class
action had been certified for violations of both federal and
California debt collection practices acts). This specific and
recent amendment controls the more general and earlier provision
that had limited the California consumer to individual actions.
Abels, 277 F.R.D. at 548. The legislative history cited by
Plaintiff demonstrates that the state legislature concluded that the
statute would be more effective if violations could be pursued in
class actions. See id. (legislative intended to broaden
remedies to include class action); Pl.'s Reply Br. at 7-9 (filed
Aug. 1, 2005) ("violations are honored more in the breach than
the observance" and "absent the threat of class action, there is
no incentive to abort an illegal continuing course of conduct")
(citing comments by Senate to the Assembly Bill)
Defendant attempts to distinguish Abels because the debt
collector in that action had independently violated both the
federal and the state debt collection practices statutes. The
court is not persuaded by this argument. As Plaintiff correctly
notes, the debt collection letter may have violated a specific
provision of the state law (by omitting specific language), but
that violation may also be considered misleading under the
federal statute. See Alkan v. CitiMortgage, Inc.,
336 F.Supp.2d 1061, 1065 (N.D. Cal. 2004) ("California simply incorporated by
reference the text of certain federal provisions" into its
statute "rather than copying them verbatim into the California
Upon due consideration of the parties' memoranda and exhibits,
and for the reasons set forth above, the court hereby grants
Plaintiff's motion for leave to file first amended class action
complaint [#8]. Plaintiff shall file and serve the amended
complaint on or before September 9, 2005.
IT IS SO ORDERED.
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