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Becerra v. National Recovery Solutions, LLC

United States District Court, S.D. California

July 24, 2014

STEFANIE BECERRA, on behalf of herself, and all others similarly situated, Plaintiff,
NATIONAL RECOVERY SOLUTIONS, LLC, a New York Corporation, Defendant.


DAVID H. BARTICK, Magistrate Judge.

On July 3, 2014, the Court denied without prejudice Plaintiff Stefanie Becerra's application to amend the Court's February 24, 2014 Scheduling Order Through Class Certification ("Scheduling Order") (ECF No. 22) and instructed the parties to file a joint document addressing whether Plaintiff can demonstrate good cause and excusable neglect to modify the Scheduling Order's April 16, 2014 deadline to file a motion to amend the pleadings. (ECF No. 27.) On July 11, 2014, the parties filed a joint motion in which Plaintiff contends she can demonstrate good cause and excusable neglect, and Defendant National Recovery Solutions, LLC contends Plaintiff cannot. (ECF No. 28.)

Having reviewed the parties' arguments and the applicable law, and for the reasons discussed below, the Court GRANTS Plaintiff's request to modify the deadline to file a motion for leave to file an amended complaint.


Plaintiff commenced this putative class action on July 2, 2013 by filing a Complaint alleging Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA") by negligently, knowingly, and/or willfully contacting Plaintiff on her cellular telephone without Plaintiff's prior express consent by use of an automatic telephone dialing system for purposes of collecting a debt. (ECF No. 1.)

Discovery was stayed in this matter until the parties completed their Rule 26(f) conference on February 6, 2014. Subsequently, on February 24, 2014, the Court conducted a Case Management Conference and issued the Scheduling Order which set a deadline of April 16, 2014 for the parties to move to join other parties, amend the pleadings, or file additional pleadings. (ECF No. 22 at ¶ 1.) The Scheduling Order also set a May 30, 2014 deadline to complete discovery related to class certification, and a June 30, 2014 deadline for Plaintiff to file a motion for class certification. ( Id. at ¶¶ 2-3.)

On February 26, 2014, Plaintiff served Defendant with her first sets of interrogatories and requests for production of documents requesting, in part, that Defendant produce all communications between Defendant and Plaintiff, including any account notes, notes and other writings by Defendant relating to such communications, and including audio recordings made of any phone calls between Defendant and Plaintiff.

On March 28, 2014, Defendant served responses and objections to Plaintiff's discovery, but did not produce any responsive documents. It was not until April 23, 2014, one week after the deadline to move to amend pleadings, that Defendant produced a single audio recording of a phone conversation between Plaintiff and one of Defendant's representatives. Defendant subsequently produced three additional audio recordings on May 2, 2014.

Based on the evidence uncovered as a result of the audio recordings produced by Defendant, Plaintiff now desires to amend her Complaint to add a new cause of action under California's Invasion of Privacy Act, CAL. PENAL CODE § 630 et seq., which prohibits the recording of calls to and from cellular phones without consent. Plaintiff also concedes that her original TCPA claims lack merit because, as learned in discovery, Defendant did not use an autodialer to dial her cellular phone. Accordingly, Plaintiff's anticipated First Amended Complaint would omit the TCPA claims and include a single cause of action under the Invasion of Privacy Act based on the allegedly illegal recordings.

Before Plaintiff can move to file an amended complaint, however, she must demonstrate good cause and excusable neglect for failing to make such a motion prior to the expiration of the April 16, 2014 deadline. As set forth below, the Court finds Plaintiff has satisfied this burden and that she should be permitted to file a motion for leave to file a First Amended Complaint.


"In general, the dates and times set in the scheduling order will not be modified except for good cause shown." Mireles v. Paragon Sys., Inc., No. 13-CV-122-L (BGS), 2014 U.S. Dist. LEXIS 17230, at *5 (S.D. Cal. Feb. 11, 2014) (citing FED. R. CIV. P. 16(b)(4) ("A schedule may be modified only for good cause and with the judge's consent.")).

When the proposed modification is an amendment to the pleadings, the moving party may establish good cause by showing "(1) that [it] was diligent in assisting the court in creating a workable Rule 16 order; (2) that [it's] noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that [it] was diligent in seeking amendment of the Rule 16 order, once it became apparent that [it] could not comply with the order."

Hood v. Hartford Life & Accident Ins. Co., 567 F.Supp.2d 1221, 1224 (E.D. Cal. 2008) (quoting Jackson v. Laureate, Inc., 186 ...

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