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Dabbas v. Moffitt & Associates

March 12, 2008


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Presently before the Court is a motion for leave to file a second amended answer brought by Defendants Moffitt & Associates and Debtorbase Collection. (Doc. No. 47.) For the following reasons, the motion is granted.


This case arises out of defendants' attempts to collect a debt from plaintiff, Firas Dabbas. Plaintiff claims defendants attempted to collect the debt despite knowing it was uncollectible because of the bankruptcy of the creditor (Complaint ¶¶ 27-40, 44-47 & 50-53), and improperly communicated with a third party in attempting to collect the debt (Compl. ¶¶ 41-43). Plaintiff also claims defendants sent him a letter marked final demand, but then sent additional demand notices. Plaintiff alleges the final demand language was thus misleading in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") and the California Fair Debt Collection Practices Act, 15 U.S.C. § 1788 et seq. ("RFDCPA"). (Compl. ¶¶ 48-50.)

Plaintiff filed a complaint on January 5, 2007. (Doc. No. 1.) On February 5, 2007, defendants filed an answer which denied all of the allegations in the complaint. (Doc. No. 3.) Plaintiff moved to strike the answer on February 9, 2007. (Doc. No. 5.) On March 15, 2007, defendants moved to file a first amended answer in light of the motion to strike. (Doc. No. 9.) The Court granted defendants' motion and denied plaintiff's motion to strike as moot. (Doc. No. 12.) Defendants' first amended answer was filed March 16, 2007. (Doc. No. 11.)

On January 22, 2008, plaintiff filed a motion for partial summary judgment. (Doc. No. 46.)

On February 11, 2008, defendants filed a motion for leave to file a second amended answer. (Doc. No. 47.) On February 12, 2008, the Court granted the parties' joint motion to continue the hearing date for the motion for partial summary judgment until after the resolution of the motion to amend the answer. (Doc. No. 50.) On February 27, 2008, plaintiff filed an opposition to the motion to amend. (Doc. No. 52.) Defendants filed a reply on March 3, 2008. (Doc. No. 53.) The Court now finds the matter fully briefed and amenable for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1).


Legal Standard

Under Rule 15 of the Federal Rules of Civil Procedure, "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." Leave to amend is granted with "extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). "There are several accepted reasons why leave to amend should not be granted, including the presence of bad faith on the part of the [party seeking to amend], undue delay, prejudice to the [party opposing amendment], futility of amendment, and that the party has previously amended the relevant pleading." Advanced Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 989 F. Supp. 1237, 1241 (N.D. Cal. 1997).


Defendants seek leave to amend their answer in order to deny part of the complaint which was admitted by their first amended answer. Plaintiff alleges, in paragraph 49 of the complaint:

In reality, Defendants then continued to demand payment on many other subsequent dates, including, but not limited to, February 27, 2006, March 23, 2006, March 30, 2006, and consequently, the communication made by Defendants to Plaintiff was a false, deceptive, or misleading representation or means in connection with the collection of the alleged debt. As such, this action by Defendants violated 15 U.S.C. §§ 1692e and 1692e(10), and because this action violated 15 U.S.C. §§ 1692e and 1692e(10), it also violated Cal. Civ. Code § 1788.17. (Compl. ¶ 49). Defendants' first amended answer included the number "49" in the list of admitted paragraphs, thus admitting defendants' collection attempts violated the FDCPA and the RFDCPA. Gary Harrison, then-counsel for defendants, has submitted a declaration to the Court stating this admission was an inadvertent typographical error. (Harrison Declaration In Support Of Motion ¶¶ 4-5.) Eric Deitz, who substituted in as defendants' counsel in July of 2007, did not realize this admission had been made until plaintiff's partial summary judgment motion, filed January 22, 2008, referenced the admission. (Deitz Decl. ISO Motion ¶ 3.) Mr. Deitz then contacted Mr. Harrison and promptly filed the instant motion on February 11, 2008. (Id. ¶¶ 4-6.)*fn1

Defendants argue that under these circumstances, the Court should grant leave to amend. Specifically, defendants argue amendment should be granted to correct an inadvertent mistake, adjust the pleadings after the substitution of ...

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