Langley v. Central Credit Control

Filing 24

ORDER signed by Judge Morrison C. England, Jr on 4/20/12 ORDERING plaintiff's Motion for Leave to Amend the Complaint 18 is GRANTED. Plaintiff is directed to file her amended complaint not later than five (5) days following the date this Memorandum and Order is electronically filed. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBIN LANGLEY,

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No. 2:10-cv-03060-MCE-KJN

Plaintiff,
v.

ORDER

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SENTRY CREDIT, INC.,

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Defendant.

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This action proceeds against Defendant Sentry Credit, Inc.

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(“Defendant”), on Plaintiff Robert Langley’s (“Plaintiff”) First

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Amended Complaint, which alleges violations of the Federal Fair

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Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and the

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Rosenthal Fair Debt Collection Practices Act, California Civil

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Code § 1788, et seq.

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Motion for Leave to Amend Complaint (ECF No. 18).1

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following reasons, Plaintiff’s Motion is GRANTED.

Presently before the Court is Plaintiff’s
For the

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Because oral argument will not be of material assistance,
the Court orders this matter submitted on the briefing. E.D.
Cal. Local Rule 230(g).
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BACKGROUND

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Plaintiff originally initiated this action as an unfair debt

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collection practices case that was based on Defendant’s

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purportedly harassing telephone calls to Plaintiff.

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2011, this Court issued a Pretrial Scheduling Order (“PTSO”)

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setting July 6, 2012, as the deadline for completion of non-

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expert discovery, September 6, 2012, as the deadline for expert

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disclosure, December 6, 2012, as Defendant’s dispositive motion

On July 28,

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filing cut-off, and May 6, 2013, as the date for trial.

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PTSO, the Court also specified that “[n]o joinder of parties or

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amendments to pleadings is permitted without leave of court, good

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cause having been shown.”

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In the

PTSO, 1:24-25.

Plaintiff subsequently served Defendant with discovery

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requests, including a request for the production of any

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recordings of Defendant’s phone calls to Plaintiff.

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served its responses to those requests on October 26, 2011.

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Plaintiff thereafter served follow-up requests for production to

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Defendant to learn whether Defendant had employed any pre-

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recorded messages informing Plaintiff the calls to her might be

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recorded.

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Defendant’s subsequent responses, which confirmed that Defendant

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had failed to warn Plaintiff her telephone calls were being

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recorded or to obtain her consent to do so.

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Defendant

On approximately December 22, 2011, Plaintiff received

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At that point, Plaintiff sought and retained experienced

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class counsel who associated in the matter on January 20, 2012.

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Shortly thereafter, on January 31, 2012, Plaintiff filed her

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instant Motion for Leave to File a Second Amended Complaint, by

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which she seeks to add four class-based causes of action arising

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out of Defendant’s allegedly illegal recording of class members’

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confidential telephone conversations without their consent.

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of Plaintiff’s proposed causes of action are alleged on behalf of

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a California class pursuant to California Penal Code § 632, which

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prohibits the recording of confidential telephone calls without

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all parties’ consent, and the right to privacy included in

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California Constitution, Article I, Section I.

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proposed claims is alleged, as an alternative to the California

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class claims, on behalf of a nationwide class under Washington

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Revised Code § 9.73.060, and the final proposed cause of action

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is alleged on behalf of both classes under a negligence per se

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theory.

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permitted leave to add these class claims.

One of her other

Plaintiff’s Motion is now GRANTED, and she will be

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STANDARD

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Typically, leave to amend should be “freely give[n]...when

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justice so requires.”

Fed. R. Civ. Pro. 15(a)(2).

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district court has filed a pretrial scheduling order pursuant to

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Rule 16, as this Court did here on July 28, 2011, however, the

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standards set forth by Rule 16 control.

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Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992); see also

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PTSO, 1:24-25.
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Once a

Johnson v. Mammoth

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“Unlike Rule 15(a)’s liberal amendment policy which focuses

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on the bad faith of the party seeking to interpose an amendment

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and the prejudice to the opposing party, Rule 16(b)’s ‘good

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cause’ standard primarily considers the diligence of the party

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seeking the amendment.”

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this standard, the Ninth Circuit has stated that:

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Johnson, 975 F.2d at 609.

In explaining

[a] district court may modify the pretrial schedule ‘if
it cannot reasonably be met despite the diligence of
the party seeking the extension.’ Moreover,
carelessness is not compatible with a finding of
diligence and offers no reason for granting of relief.
Although the existence or degree of prejudice to the
party opposing the modification might supply additional
reasons to deny a motion, the focus of the inquiry is
upon the moving party’s reasons for seeking
modification. If that party was not diligent, the
inquiry should end.

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Id. (citations omitted).

To demonstrate diligence under Rule

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16's “good cause” standard, courts have required movants to show

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that: 1) they were diligent in assisting the Court in creating a

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workable Rule 16 order; 2) despite their diligent efforts to

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comply, their noncompliance with a Rule 16 deadline occurred

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because of the development of matters that could not have been

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reasonably foreseen or anticipated; and 3) they were diligent in

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seeking amendment of the Rule 16 order, once it became apparent

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that they could not comply with the order.

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Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (internal citations

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omitted).

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Jackson v. Laureate,

ANALYSIS

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According to Plaintiff, good cause exists to justify further

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amendment of her First Amended Complaint here because she did not

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know and could not have known prior to conducting discovery that

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her calls with Defendant were recorded.

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that in prosecuting her originally filed action, she diligently

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pursued discovery, which, on December 19, 2011, resulted in

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confirmation that Defendant had, without notice to her and

Plaintiff thus contends

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without her consent, recorded her phone calls.

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thereafter promptly hired class counsel and filed her instant

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Motion.

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class-based discovery and that she intends to file her motion for

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class certification prior to May 23, 2012.

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that amendment of her FAC will not require modification of the

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deadlines set by the Court in the PTSO.

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Plaintiff

Plaintiff further argues that she is already preparing

Plaintiff thus avers

Defendant disagrees, of course, arguing Plaintiff has been

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dilatory in seeking amendment and that any amendment will be

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futile.

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unjustifiably delayed bringing her instant Motion because she

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waited three months after receiving the recordings from Defendant

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and one year after filing this action to seek leave to amend.

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In addition, Defendant argues amendment will be futile in any

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event because this case is substantially similar to another

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pending class action filed in the Southern District of

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California, Allen v. Sentry Credit, Inc., 3:11-cv-02317-IEG-BLM.

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More specifically, Defendant believes Plaintiff

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The Allen case also asserts violations of California Penal Code

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section 632 and California Constitution, Article I, Section 1, as

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well as a negligence cause of action.

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Defendant, it will be prejudiced if Plaintiff is permitted to

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amend because it will be required to file a Motion to Strike or a

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Motion to Dismiss Plaintiff’s class claims as duplicative of

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those raised in Allen.

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to engage in extensive additional discovery and dispositive

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motion preparation, which would consequently require Defendant to

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Finally, according to

Defendant will also purportedly be forced

later seek to modify the PTSO.
Plaintiff’s arguments are well-taken.

The record before the

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Court indicates that Plaintiff timely pursued discovery related

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to her existing fair debt collection claims and promptly sought

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leave to add her class claims only one month after she had

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obtained Defendant’s responses indicating those causes of action

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might be viable.

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Defendant’s argument that Plaintiff should have sought amendment

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upon receipt of the recordings themselves, rather than upon

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receipt of Defendant’s responses indicating it did not utilize

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pre-recorded messages, the Court would still find the interests

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of justice served by permitting amendment are outweighed by the

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marginal delay between Defendant’s October production of that

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evidence and Plaintiff’s filing of her current Motion in January,

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particularly in light of Plaintiff’s interim need to locate and

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retain class counsel.

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with Plaintiff’s decision to expeditiously pursue confirmation as

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to the legitimacy of her class claims prior to calling upon the

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resources of this Court in seeking leave to amend.

Moreover, even if the Court were to accept

In any event, the Court finds no fault

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Accordingly, especially given the fact that dispositive motions

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are not set to be heard until the end of this year and trial is

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not set to begin until next year, the Court finds Plaintiff was

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diligent in seeking leave to amend here.

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The Court likewise rejects Defendant’s contention that

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Plaintiff’s Motion should be denied because her class claims are

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duplicative of those pending in the Allen case.

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argument is really a substantive challenge to the proposed

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amended pleading that, while potentially appropriate in response

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to the Second Amended Complaint, once filed, is not proper in the

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context of whether Plaintiff should, as an initial matter, be

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permitted leave to amend.

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Court no class has been certified in that litigation.

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Accordingly, while the Allen plaintiff may be pursuing putative

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class claims, it is entirely speculative to presume those claims

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will ever actually be litigated on behalf of the named class.

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Moreover, Defendant’s “substantial similarity” argument is based

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on Plaintiff’s California-based claims, but wholly ignores the

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fact that Plaintiff in this case seeks to add additional class

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claims, one of which arises under Washington law, on behalf of a

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nationwide class as well.

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find at this preliminary juncture that any amendment would be so

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futile as to justify denying Plaintiff’s Motion.

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First, this

In addition, Plaintiff has advised the

Accordingly, this Court declines to

Finally, Defendant’s theory that it will be prejudiced by

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amendment is likewise rejected.

There is still ample time prior

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to the dispositive motion deadline and the current trial date in

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which the parties can litigate this case.

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Discovery does not close for several months, and there is no

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indication at this time that any dates in the PTSO will at any

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point need to be modified.

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characterize the potential for additional motion practice or

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discovery as “prejudicial” fails as well because Defendant has

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not described anything beyond what is part and parcel of any

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litigation.

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contrary, Plaintiff’s Motion is now GRANTED.

In addition, Defendant’s attempt to

Accordingly, no persuasive arguments to the

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CONCLUSION

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For the reasons just stated, Plaintiff’s Motion for Leave to

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Amend the Complaint (ECF No. 18) is GRANTED.

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directed to file her amended complaint not later than five (5)

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days following the date this Memorandum and Order is

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electronically filed.

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Plaintiff is

IT IS SO ORDERED.
Dated: April 20, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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