Almanza v. Credit One Bank, N.A.

Filing 28

ORDER Granting Plaintiff's 22 Motion to Amend, signed by District Judge Dale A. Drozd on 3/6/2018. (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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YOLANDA ALMANZA,

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No. 1:17-cv-00830-DAD-SKO

Plaintiff,
ORDER GRANTING PLAINTIFF’S MOTION
TO AMEND

v.
CREDIT ONE BANK, N.A. and DOES 125,

(Doc. No. 22)

Defendants.

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CREDIT ONE BANK, N.A.,

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Third-Party Plaintiff,
v.
PETER ALMANZA and ROES 1-25,
Third-Party Defendants.

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This matter is before the court on plaintiff’s motion to amend. On March 6, 2018, this

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matter came before the court for hearing. Attorney Yitzchak Zelman appeared on behalf of

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plaintiff Yolanda Almanza. Attorney David Kaminski appeared on behalf of defendant/third-

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party plaintiff Credit One Bank, N.A. Having considered the briefing and heard from counsel, the

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court will grant plaintiff’s motion.
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BACKGROUND
In her first amended complaint, plaintiff alleges as follows. Plaintiff alleges that she has

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been receiving incessant wrong number calls placed by defendant, as well as defendant’s

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unidentified third-party calling vendors. (Doc. No. 13 (“FAC”) at ¶ 1.) Specifically, plaintiff

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alleges a campaign by defendant of attempting to communicate with plaintiff via the use of an

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automated telephone dialing system and prerecorded messages, which has persisted for the past

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four years. (Id. at ¶ 11.) Upon answering these calls, defendant’s representatives would ask for

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an individual named “Peter,” although plaintiff is the sole user of her cellular phone number. (Id.

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at ¶ 12, 13.) Defendant used multiple phone numbers to make these calls, and plaintiff confirmed

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that these calls were made by defendant by calling those numbers and being connected with an

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automated answering service stating “Welcome to Credit One Bank.” (Id. at ¶ 15.) Plaintiff

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states that she never gave defendant her prior, express permission to call her cell phone via the

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use of an automated telephone dialing system or prerecorded voice, and expressly directed

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defendant to stop doing so on numerous occasions. (Id. at ¶¶ 18, 19.) However, these calls did

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not stop, causing the plaintiff to be harassed, stressed, frustrated, and annoyed. (Id. at ¶ 23.)

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The FAC alleges three causes of action. First, it alleges a violation of the Telephone

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Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227 et seq. Second, it alleges a violation of

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the Rosenthal Fair Debt Collection Practices Act (the “Rosenthal Act”), 31 Cal. Civ. Code

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§ 1788.17. Third, it alleges common law invasion of privacy by intrusion upon seclusion. On

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January 15, 2018, plaintiff filed the instant motion to amend, seeking to add as defendants Expert

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Global Solutions Financial Care, Inc. (“Expert Global”) and Convergent Outsourcing, Inc.

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(“Convergent”). Defendant has not opposed this motion and its non-opposition was confirmed at

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the hearing on the pending motion.

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LEGAL STANDARD
“A party may amend its pleading once as a matter of course within: (A) 21 days after

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serving it or (B) if the pleading is one to which a responsive pleading is required, 21 days after

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service if a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),

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whichever is earlier.” Fed. R. Civ. P. 15(a). Otherwise, a party must seek leave of court to
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amend a pleading or receive the opposing party’s written consent. Id.

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The Federal Rules of Civil Procedure provide that leave to amend pleadings “shall be

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freely given when justice so requires.” Id. Nevertheless, leave to amend need not be granted

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when the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces

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an undue delay in litigation; or (4) is futile. See AmerisourceBergen Corp. v. Dialysist W. Inc.,

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465 F.3d 946, 951 (9th Cir. 2006) (citing Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999)).

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“Prejudice to the opposing party is the most important factor.” Jackson v. Bank of Haw., 902

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F.3d 1385, 1397 (9th Cir. 1990) (citing Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S.

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321, 330–31 (1971)). “The party opposing leave to amend bears the burden of showing

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prejudice.” Serpa v. SBC Telecomms., 318 F. Supp. 2d 865, 870 (N.D. Cal. 2004) (citing DCD

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Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)); see Clarke v. Upton, 703 F. Supp.

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2d 1037, 1041 (E.D. Cal. 2010); see also Alzheimer’s Inst. of Am. v. Elan Corp., 274 F.R.D. 272,

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276 (N.D. Cal. 2011).

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Further, in determining futility, “[t]he proper test to be applied when determining the legal

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sufficiency of a proposed amendment is identical to the one used when considering the

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sufficiency of a pleading challenged under Rule 12(b)(6) or (f): if there is no set of facts which

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could be proved under the amendment to the pleadings which would constitute a valid and

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sufficient claim or defense, leave should be denied.” Baker v. Pac. Far E. Lines, Inc., 451 F.

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Supp. 84, 89 (N.D. Cal. 1978) (citing 3 Moore’s Federal Practice P. 15.08(4) (2d ed. 1974)).

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Amendment is therefore proper “if the deficiencies can be cured with additional allegations that

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are ‘consistent with the challenged pleading’ and that do not contradict the allegations in the

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original complaint.’” United States v. Corinthian Colls., 655 F.3d 984, 955 (9th Cir. 2011)

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(citing Reddy v. Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990)).

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DISCUSSION

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As the parties have proceeded through discovery, plaintiff was made aware of the

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identities of several third-party dialer vendors retained by defendants to place the phone calls at

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issue in this case. Plaintiff therefore seeks to amend its complaint and add those companies as

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defendants. Although plaintiff’s motion is unopposed, the court will nonetheless examine the
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four factors discussed above to determine whether leave to amend is warranted in this case.

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A.

Prejudice to the Opposing Party
“Absent prejudice, there is a presumption under Rule 15(a) in favor of granting leave to

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amend.” Serpa, 318 F. Supp. 2d at 870 (citing Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1052 (9th Cir. 2003)). Moreover, the party opposing amendment bears the burden of

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showing such prejudice. Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, 833 F.2d at

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186). As noted, defendant has not opposed this motion. Accordingly, the court finds no basis to

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conclude that defendant would be in any way prejudiced by granting leave to amend.

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B.

Bad Faith

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The court next examines whether plaintiff’s motion to amend was made in bad faith. In

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support of its contention that it has acted in good faith, plaintiff attaches to its motion a series of

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emails between plaintiff’s counsel and defendant’s counsel. In those emails, plaintiff’s counsel

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advised defendant’s counsel on December 18, 2017 that it wished to amend its complaint to add

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additional parties to its complaint. (Doc. No. 22-3 at 1.) At the request of defendant’s counsel,

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plaintiff’s counsel then prepared a stipulation for defendant to review and sign, and also gave

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defendant an opportunity to review the proposed amended complaint. (Doc. No. 22-4 at 1–4.)

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Despite these efforts by plaintiff’s counsel, defendant has apparently not agreed to plaintiff’s

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proposed stipulation.

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Far from acting in bad faith, the court finds that plaintiff provided defendant with ample

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notice of its intent to amend its complaint, and is doing so solely to include the proper parties in

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this litigation. The court finds that the instant motion was not made in bad faith.

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C.

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Undue Delay
The third factor that the court must consider is whether granting leave to amend would

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cause undue delay in the litigation. In answering this question a court will “not merely ask

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whether a motion was filed within the period of time allotted by the district court in a Rule 16

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scheduling order.” AmerisourceBergen Corp., 465 F.3d at 953. Instead, a court must also inquire

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“whether the moving party knew or should have known the facts and theories raised by the

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amendment in the original pleading.” Jackson, 902 F.2d at 1388.
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Plaintiff’s motion fully complied with the scheduling order in this case. The instant

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motion was filed on January 15, 2018, which was the deadline for the parties to request leave to

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amend the pleadings. (See Doc. No. 15 at 2.) Moreover, there is no reason to believe that

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plaintiff knew or should have known the identities of the corporations it now seeks to name in an

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amended complaint, since defendant did not disclose the identities of those corporations in its

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initial disclosures under Rule 26. (See Doc. No. 22-6.) The court therefore finds that granting

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leave to amend would not cause undue delay in this case.

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D.

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Futility
Finally, the court addresses whether leave to amend would be futile. “An amendment is

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futile when ‘no set of facts can be proved under the amendment to the pleadings that would

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constitute a valid and sufficient claim or defense.’” Mo. ex rel. Koster v. Harris, 847 F.3d 646,

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656 (9th Cir. 2017) (quoting Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)).

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The court has reviewed the proposed amended complaint and finds that leave to amend

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would not be futile. The allegations against Expert Global and Convergent appear to be

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indistinguishable from the allegations already made against defendant Credit One, since the

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proposed complaint alleges that defendant Credit One hired Expert Global and Convergent to

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place the phone calls at issue in this case. (Doc. No. 22-7 at ¶ 30.) Amending the complaint

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would therefore not be futile.

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CONCLUSION

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For these reasons, plaintiff’s unopposed motion to amend (Doc. No. 22) is granted.

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IT IS SO ORDERED.
Dated:

March 6, 2018
UNITED STATES DISTRICT JUDGE

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