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Marlin v. Chase Cardmember Services

May 18, 2009

RAYMOND M. MARLIN, PLAINTIFF,
v.
CHASE CARDMEMBER SERVICES, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING DEFENDANT'S MOTION FOR LEAVE TO ADD COUNTERCLAIMS

(Document 16)

On April 8, 2009, Defendant Chase Cardmember Services ("Defendant") filed the instant motion for leave to add two counterclaims. The matter was heard on May 8, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. George Weickhardt appeared on behalf of Defendant. Plaintiff Raymond Marlin ("Plaintiff") is proceeding pro se and appeared on his own behalf.

BACKGROUND

Plaintiff filed the instant action on January 30, 2009, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), as well as state law causes of action.

After receiving an extension of time, Defendant filed its answer on April 3, 2009. On April 8, 2009, Defendant filed a motion for leave to add two counterclaims. Specifically, Defendant seeks to add the counterclaims to recover the unpaid balance ($35,240.45) on the underlying credit account. Alternatively, Defendant argues that it can add the counterclaim as a matter of right given that it has moved within 20 days of its answer. Fed.R.Civ.P. 15(a)(B).

Plaintiff filed his opposition on April 21, 2009, and Defendant filed its reply on April 30, 2009.

ALLEGATIONS IN THE COMPLAINT

Plaintiff alleges that he is 71 years old and works as the manager for his business, Linmar Property Management, in Visalia, California. His business is located at his place of residence. His average gross revenues over the past three years were $143,872, with net profits of $83,872. He states that in August 2008, notwithstanding his revenue stream, he made a decision to stop servicing the debt he incurred with Defendant in the amount of $32,591.*fn1 Plaintiff made this decision because of his "financial crunch," innumerable late fees, over-limit fees and arbitrary increases in the annual percentage rate. Also in August 2008, Plaintiff hired Financial and Credit Solutions, LLC, to mediate the debt. He alleges that Financial and Credit Solutions, LLC, sent a series of cease and desist letters in August 2008, September 2008 and December 2008. Plaintiff alleges that Defendant ignored these letters and tried to collect on the debt through a "series of harassing phone calls" beginning on August 27, 2008. Plaintiff informed Defendant that Financial and Credit Solutions had a power of attorney for Plaintiff and that it had to deal with that company regarding collection of the debt.

Plaintiff alleges that Defendant ignored the "legally prescribed avenues" to recover the alleged debt and instead used harassing tactics in violation of the FDCPA. He alleges causes of action for (1) negligent infliction of emotional distress, and (2) tortious interference. He requests damages in a "sum in excess of $8,900, along with attorney's fees and costs, to be determined, together with punitive damages, delay damages, costs and such other relief as this Honorable Court deems just and proper." Complaint, 6-7.

DISCUSSION

A. Legal Standard

Federal Rule of Civil Procedure 13(f) provides that the Court may permit a party to amend a pleading to add a counterclaim if it was omitted through oversight, inadvertence, or excusable neglect or if justice so requires. Generally, pursuant to Rule 15(a), amendment of pleadings should be liberally allowed, and in determining whether leave to amend should be granted, courts consider factors such as the good faith and diligence of the claimant, the extent of the delay, futility of amendment, and the danger of prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962).

These factors are likewise considered in determining if, pursuant to Rule 13(f), leave should be granted to allow an amendment to allege a counterclaim omitted through oversight, inadvertence, or excusable neglect, or when justice requires. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 392 n. 10 (1993); Hip Hop Beverage Corp. v. RIC Representcoes Importacao e Comercio Ltda., 220 F.R.D. 614, 620 (C.D.Cal.2003). Generally, although the decision to grant or deny a motion for leave to amend is governed by the court's discretion, amendment is permitted unless the opposing party makes a showing of ...


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