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Gulcynski v. Fidelity National Title Group

April 23, 2007

BRANDON GULCYNSKI, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
FIDELITY NATIONAL TITLE GROUP, [DOCS. #4 AND 11] DEFENDANT.



The opinion of the court was delivered by: Hon. John A. Houston United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION TO FILE A SECOND AMENDED COMPLAINT AND DENYING DEFENDANT'S MOTION TO DISMISS AS MOOT

INTRODUCTION

Now before this Court is Plaintiff Brandon Gulczynski ("Plaintiff") Motion for Leave to File a Second Amended Complaint under Rule 15(a), and Defendant Fidelity National Title Group ("Fidelity"), Motion to Dismiss under Rule 12 (b)(1). The matters have been fully briefed by the parties. After careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court GRANTS Plaintiff's motion for leave to file a second amended complaint, and DENIES Defendant's motion to dismiss under Rule 12(b)(1) as moot.

BACKGROUND*fn1

Plaintiff seeks, through the instant complaint, statutory damages and equitable relief as a result of Defendant's alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692, et seq. ("FDCPA"), and the California Fair Debt Collection Practices Act, Cal. Civ. Code §1788 et seq. ("RFDCPA"), which prohibit debt collectors from engaging in abusive, deceptive and unfair practices.

Sometime before March 15, 2006, Plaintiff alleges that he incurred financial obligations to Chicago Title Insurance ("Chicago"). Subsequently, but before March 15, 2006, Plaintiff allegedly fell behind in the payments owed on the debt.

Subsequent to, but before March 15, 2006, the debt was assigned or otherwise transferred to Fidelity for collection. Plaintiff alleges that on or about March 15, 2006, Chicago gave the false impression that Fidelity was a third party debt collector by using the Fidelity name when it sent a letter addressed to the Plaintiff's home. See Doc. No. 11 at 6. Plaintiff alleges that the use of the Fidelity name, in attempting to collect an alleged debt, was designed to falsely imply that the account had been forwarded to a separate, independent, third party debt collection agency. Plaintiff filed his original complaint on July 7, 2006, and then amended the complaint to add a demand for jury trial on August 17, 2006.

On September 22, 2006, Fidelity filed a Motion to Dismiss for lack of subject matter jurisdiction. Plaintiff filed an opposition on November 6, 2006. On November 20, 2006, Fidelity filed a reply.

On November 6, 2006, Plaintiff filed a Motion to Amend/Correct First Amended Complaint. Fidelity filed an opposition on November 30, 2006. On December 7, 2006, Plaintiff filed a reply.

DISCUSSION

Legal Standard - Amending Pleadings The filing of an amended complaint or counter-claim after a responsive pleading has been filed may be allowed by leave of court. Fed.R.Civ.P. 15(a). Rule 15(a) provides in pertinent part that:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend within 20 days after it is served. Otherwise, a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

The Supreme Court has instructed lower courts to heed the language of Rule 15(a) to grant leave freely when justice requires. Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). Because Rule 15(a) mandates that leave to amend should be freely given when justice so requires, the rule is to be interpreted with "extreme liberality." United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

Granting leave to amend rests in the sound discretion of the trial court. International Ass'n of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1390 (9th Cir. 1985). This discretion must be guided by the strong federal policy favoring the disposition of cases on the merits. DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Because Rule 15(a) favors a liberal policy, the nonmoving party bears the burden of ...


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