Taylor v. Harbin, LLC
ORDER GRANTING Plf's 22 Motion to Amend Complaint as set out. Signed by Judge Callie V. S. Granade on 5/15/2015. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
HARBIN, LLC and PATRICK
CIVIL ACTION NO. 14-237-CG-C
This matter is before the Court on Plaintiff’s motion for leave to amend
complaint (Doc. 22), Harbin, LLC’s response in opposition (Doc. 25), and
Plaintiff’s reply. (Doc. 27). After careful consideration, the Court finds the
motion is due to be granted.
Dierdre Taylor (“Plaintiff”) initiated this case on May 28, 2014. (Doc.
1). The docket shows this case got off to a rocky start. After months of
unsuccessful service attempts, the Court ordered Plaintiff to serve Harbin,
LLC by publication. (Doc. 15). Plaintiff filed proof of publication on February
6, 2015. (Doc. 16). Harbin, LLC answered the complaint on February 27,
2015. (Doc. 17). The Rule 16(b) Scheduling Order subsequently set May 29,
2015 as the deadline for filing motions for leave to amend the pleadings or to
join other parties. (Doc. 21, p. 2). Thus, even though Plaintiff filed this motion
for leave to amend her complaint on April 30, 2015, roughly eleven months
after filing her initial complaint, it is timely filed.
In her complaint, Plaintiff alleges Harbin, LLC violated the Fair Debt
Collection Practices Act (“FDCPA”) when it attempted to collect a debt from
her that she did not owe. (Doc. 1, p. 2). Harbin, LLC sent Plaintiff a letter
demanding she pay the debt, and then sued Plaintiff in small claims court in
an effort to collect the alleged debt. (Doc. 1, p. 2). Plaintiff alleges that the
state trial court ruled in her favor, and the Circuit Court of Mobile County
reached the same conclusion after Harbin, LLC appealed. (Doc. 22-1, p. 4).
Through her motion for leave to amend, Plaintiff seeks to add Patrick
Jouve as a defendant in his individual capacity. Jouve is the sole manager,
organizer, and registered agent for Harbin LLC. (Doc. 8-4, p. 1; Doc. 22-1, p.
2). Plaintiff states she learned additional information about Harbin, LLC and
Jouve during the state court litigation. (Doc. 22, p. 1). Plaintiff alleges Jouve
operates Harbin, LLC as an alter ego of himself, fails to maintain the
corporate form, and does not adequately capitalize the company to satisfy its
liabilities. (Doc. 22-1, p. 2). Plaintiff also clarifies significantly her claims for
relief in the amended complaint, though the factual allegations underlying
the claims are largely the same. (Doc. 22-1, pp. 5 – 8).
Defendant objects to the motion for leave to amend to add Jouve as a
party because “Plaintiff has no factual basis to make such allegations, and
Plaintiff has provided no further evidentiary support for said allegations.”
(Doc. 25, p. 1). Defendant therefore argues adding Jouve as a party “without
a scintilla of evidence is prejudicial and malicious.” (Doc. 25, p. 1).
Federal Rules of Civil Procedure, Rule 15(a) declares Courts should
“freely give leave [to amend a pleading] when justice so requires.” “Rule 15(a)
evinces a bias in favor of granting leave to amend. Its purpose is to assist the
disposition of the case on its merits, and to prevent pleadings from becoming
ends in themselves.” Chitimacha Tribe of La. v. Harry L. Laws Co. Inc., 690
F.2d 1157, 1163 (5th Cir. 1982) (citations omitted). Indeed, the Supreme
Court makes clear that Rule 15(a)’s “mandate is to be heeded.” Foman v.
Davis, 371 U.S. 178, 182 (1962). “In the absence of any apparent or declared
reason—such as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.—the leave sought should, as the
rules require, be ‘freely given.’” Id.
This is Plaintiff’s first motion for leave to amend her complaint.
Plaintiff did not unduly delay in filing her motion to amend, nor is the
amendment futile. Plaintiff seeks to add Jouve as a defendant and potentially
“pierce the veil” of Harbin, LLC. (Doc. 22-1, p. 2). Filo Am., Inc. v. Olhoss
Trading Co., 321 F. Supp. 2d 1266, 1269 (M.D. Ala. 2004) (under Alabama
law, it is possible to “pierce the veil” of an LLC in some situations). Plaintiff
also alleges Jouve acted as a “debt collector” in an individual capacity,
regardless of the existence of Harbin, LLC. (Doc. 22-1, p. 2; Doc. 27, pp. 1 – 2).
The FDCPA defines the term “debt collector” to include “any person
who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6).1 Pursuant
to this definition, Plaintiff need not pierce Harbin, LLC’s veil for Jouve to be
held liable under the FDCPA. See Cruz v. Int’l Collection Corp., 673 F.3d 991,
999 (9th Cir. 2012) (sole owner, officer, and director of corporation may be
considered a “debt collector”); Kistner v. Law Offices of Michael P.
Margelefsky, LLC, 518 F.3d 433, 437 (6th Cir. 2008) (finding sole member of
LLC may be personally liable on the basis of his participation in the debt
collection activities of the LLC more generally). Plaintiff’s allegations that
Defendants, meaning Harbin, LLC and Jouve, “regularly attempt to collect
The Supreme Court has interpreted this definition to include individuals,
such as lawyers, who regularly engage in consumer debt collection activity.
Heintz v. Jenkins, 514 U.S. 291, 299 (1995). The Eleventh Circuit later
echoed, “the Supreme Court has held that initiation of legal proceedings by a
creditor can constitute a debt collection activity.” LeBlanc v. Unifund CCR
Partners, 601 F.3d 1185, 1193 n. 15 (11th Cir. 2010) (emphasis in original).
More recently, the Eleventh Circuit found that a law firm may be a “debt
collector” if it regularly attempts to collect debts. Reese v. Ellis, Painter,
Ratterree & Adams, LLP, 678 F.3d 1211, 1218 (11th Cir. 2012).
debts alleged to be due to others” and are FDCPA “debt collectors,” are
sufficient to overcome Defendants’ objections to adding Patrick Jouve in his
individual capacity. See Iyamu v. Clarfield, Okon, Salomone, & Pincus, P.L.,
950 F. Supp. 2d 1271, 1275 (S.D. Fla. 2013) (finding same).
Although Harbin, LLC argues Plaintiff does not provide a “scintilla of
evidence” to support adding Jouve, the Court disagrees. Plaintiff explains
that Jouve is the sole member of Harbin, LLC; a fact that Defendants do not
dispute. (Doc. 25, p. 1). Plaintiff asserts she learned more about Harbin,
LLC’s operations during the related state court litigation. (Doc. 22, p. 1).
Plaintiff further explains that given the facts alleged, she should have the
opportunity to better conform her complaint to the evidence and get the
chance to conduct discovery as to the personal liability of Jouve. (Doc. 22, p.
1; Doc. 27, p. 3). Plaintiff has thus sufficiently provided enough facts in her
motion and complaint to state claims for relief that are facially plausible. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The remaining question for this Court to resolve, then, is whether the
amendment may result in undue prejudice to Harbin, LLC or Jouve. The
Court finds adding Jouve in his individual capacity does not result in undue
prejudice. Jouve already knew that his company, Harbin, LLC, of which he is
the sole member, was the only named defendant in this lawsuit. The statutes
of limitations for these claims have not run, so the constraints and
considerations of Rule 15(c) are not an issue. In sum, the Court finds no
significant or justifiable reason to deny Plaintiff’s motion for leave to amend
her complaint at this stage in the litigation. Foman, 371 U.S. at 182 (denying
leave to amend without any justifying reason is abuse of discretion).
Plaintiff’s motion for leave to amend her complaint (Doc. 22) is
DONE and ORDERED this 14th day of May, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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