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Jacobson v. Persolve, LLC

United States District Court, N.D. California, San Jose Division

May 1, 2015

SANDRA LEE JACOBSON, Plaintiff,
v.
PERSOLVE, LLC, et al., Defendants.

ORDER DENYING MOTION FOR LEAVE TO FILE SECOND AMENDED CLASS ACTION COMPLAINT Re: Dkt. No. 97

LUCY H. KOH, District Judge.

Plaintiff Sandra Lee Jacobson ("Plaintiff") brings this putative class action against Defendants Persolve, LLC, d/b/a Account Resolution Associates ("Persolve") and Stride Card, LCC ("Stride Card") (collectively, "Defendants") for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788 et seq. ("RFDCPA"). Plaintiff contends that Persolve and Stride Card engaged in a routine practice of sending initial debt collection notices that did not disclose to the reader the name of the creditor to whom the debt was owed. ("FAC"), ECF No. 15 ¶ 23.

Before the Court is Plaintiff's motion for leave to file a second amended class action complaint. ("Mot."), ECF No. 87. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing scheduled for June 18, 2015. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court hereby DENIES Plaintiff's motion for leave to file a second amended class action complaint.

I. BACKGROUND

A. Factual Allegations

This putative class action arises out of Persolve's attempt to collect consumer debts from Plaintiff and others similarly situated. Plaintiff alleges that she incurred a consumer debt issued by Wells Fargo Bank, N.A. ("the debt") at an unknown time for personal, family, or household purposes. FAC ¶ 12. The debt was later sold, assigned, or otherwise transferred to Stride Card. Id. ¶ 13. Stride Card then allegedly consigned, placed, or otherwise assigned the debt to Persolve for collection. Id. ¶ 14.

Plaintiff alleges that on March 4, 2013, Persolve sent an initial collection notice to Plaintiff on behalf of Stride Card. Id. ¶ 15; ECF No. 1-1. The collection notice listed Wells Fargo as the "Original Creditor." ECF No. 1-1. The notice did not identify Stride Card, which was the current owner and creditor of Plaintiff's debt. FAC ¶ 21. Plaintiff alleges that Persolve sends similar collection notices to consumers that do not contain the name of the current creditor when Persolve collects defaulted debts. Id. ¶ 23. Furthermore, Plaintiff alleges that as the current creditor, Stride Card is vicariously liable for the acts of Persolve, and thus brings these causes of action against both Defendants. Id. ¶ 10.

B. Procedural History

Plaintiff filed her Original Complaint on February 18, 2014. ECF No. 1. Persolve filed an answer to Plaintiff's Original Complaint on March 18, 2014. ECF No. 10. On March 26, 2014, Persolve served Plaintiff's counsel with an Offer of Judgment pursuant to Federal Rule of Civil Procedure 68. ECF No. 21-3. Under the Offer of Judgment, Persolve proposed to pay Plaintiff $3, 500.00 to resolve her individual claim. Id. at 1. The Offer of Judgment further provided that Plaintiff would receive reasonable attorneys' fees and costs incurred in the action, with the amount to be determined by the Court if the parties were unable to agree. Id. at 2. Plaintiff filed the Motion to Strike Persolve's Offer of Judgment on April 4, 2014. ECF No. 21. Persolve filed an Opposition to Plaintiff's Motion to Strike on April 18, 2014. ECF No. 25. On the same day, Persolve filed a request for Judicial Notice in support of its opposition. ECF No. 26. Plaintiff filed a Reply in Support of the Motion to Strike Persolve's Offer of Judgment on April 25, 2014. ECF No. 28. On August 19, 2014, the Court denied Plaintiff's motion to strike Persolve's offer of judgment. ECF No. 55.

Plaintiff filed the FAC on March 28, 2014, ECF No. 15, which Persolve answered on April 14, 2014, ("Persolve Answer") ECF No. 24. Persolve's Answer asserted twelve affirmative defenses: (1) failure to state a claim; (2) statute of limitations; (3) bona fide error; (4) no material misrepresentation; (5) equitable defenses; (6) no intentional or reckless conduct; (7) mitigation of damages; (8) offset; (9) no declaratory relief; (10) no class action; (11) not a debt collector as defined in the FDCPA; and (12) reservation of rights. Id. at 8-10. In response, Plaintiff filed a Motion to Strike Persolve's Affirmative Defenses on May 5, 2014. ECF No. 29. Persolve opposed the motion on May 19, 2014, ECF No. 33, and also submitted a Request for Judicial Notice in support of its opposition, ECF No. 34. Persolve attached a Proposed Amended Answer to its opposition, in which Persolve waived all but four of its affirmative defenses. ECF No. 33-1. Plaintiff filed a Reply in Support of the Motion to Strike Persolve's Affirmative Defenses on May 27, 2014, ECF No. 36. On August 19, 2014, the Court granted in part and denied in part Plaintiff's motion to strike affirmative defenses. ECF No. 55. Persolve filed an amended answer to the FAC on September 9, 2014. ECF No. 61.

Stride Card filed an Answer to the FAC on May 15, 2014. ("Stride Card Answer") ECF No. 32. Stride Card's Answer asserts four affirmative defenses: (1) failure to state a claim; (2) bona fide error; (3) good faith; and (4) offset. Id. at 9-10. On June 5, 2014, Plaintiff filed a Motion to Strike Stride Card's Affirmative Defenses. ECF No. 40. Stride Card opposed Plaintiff's Motion to Strike on June 19, 2014. ECF No. 43. Also on June 19, 2014, Stride Card filed a Request for Judicial Notice in support of its opposition. ECF No. 44. Plaintiff filed a Reply in Support of the Motion to Strike Stride Card's Affirmative Defenses on June 25, 2014. ECF No. 47. On August 19, 2014, the Court granted in part and denied in part Plaintiff's motion to strike affirmative defenses. ECF No. 55.

On February 23, 2015, Plaintiff filed the instant motion requesting leave to file a second amended class action complaint. ECF No. 87. Plaintiff also filed an administrative motion to seal various exhibits attached in support of her motion.[1] ECF No. 88. Plaintiff filed a motion to shorten time on hearing Plaintiff's motion requesting leave to file a second amended class action complaint on February 25, 2015, which the Court denied on March 3, 2015. ECF Nos. 90, 91. Defendants filed an opposition to Plaintiff's motion for leave to file a second amended class action complaint on March 9, 2015. ("Opp."), ECF No. 92. Plaintiff replied on March 16, 2015. ("Reply"), ECF No. 93.

II. DISCUSSION

Plaintiff seeks leave to file a second amended complaint. As a general matter, Federal Rule of Civil Procedure 15(a) states that leave to amend shall be freely given "when justice so requires." Fed.R.Civ.P. 15(a). The Court considers five factors in assessing a motion for leave to amend: "bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint." Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). However, in cases where a party moves to amend or add a party after the Court's deadline for filing motions or amending the pleadings, Federal Rule of Civil Procedure 16 governs, and the party must show good cause and obtain the judge's consent to modify the deadlines set by the Court. See Fed.R.Civ.P. 16(b)(4). "The good cause' standard primarily considers the diligence of the party seeking the amendment. Carelessness is not compatible with a finding of ...


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