Carrasco et al v. Shasta-Cascade Credit Bureaus, Inc.

Filing 21

ORDER signed by District Judge Kimberly J. Mueller on 5/3/2016 ORDERING 20 the court GRANTS plaintiffs ex parte application for leave to amend; Plaintiffs shall file the proposed Second Amended Complaint as a separate document on the court's d ocket of this case within 7 days; Initial Scheduling Conference Reset for 7/21/2016 at 02:30 PM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller; a Joint Status Report filed in advance as required by this Court's Scheduling Order and the Local Rules. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY CARRASCO et al.,

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No. 2:15-cv-01419-KJM-KJN

Plaintiffs,
v.

ORDER

SHASTA-CASCADE CREDIT
BUREAUS, INC., doing business as North
Valley Collection Bureau, and LINDA
BENNER,
Defendants.

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This matter is before the court on the motion to amend the First Amended

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Complaint brought by plaintiffs Anthony Carrasco and Kimberly Carrasco. ECF No. 20.

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Defendants Shasta-Cascade Credit Bureaus, Inc. (Shasta-Cascade) and Linda Benner have yet to

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appear or respond. For reasons explained below, the court GRANTS plaintiffs leave to amend the

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First Amended Complaint.

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As a threshold matter, except as otherwise provided by the local rules or as ordered

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by the court, Local Rule 230 requires all motions to be noticed on the motion calendar of the

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undersigned. Plaintiffs moved to amend their complaint on April 21, 2016, but did not notice the

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motion for a hearing date. However, as plaintiffs filed the complaint on July 2, 2015, and to this

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date defendants have not appeared or responded in this matter, the court construes the motion as

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an ex parte application for purposes of judicial efficiency and refers to it as such below.

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Rule 15 provides that leave to amend “shall be freely given when justice so

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requires.” Fed. R. Civ. P. 15(a). The Ninth Circuit has held that “‘[t]his policy is to be applied

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with extreme liberality.’” Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th

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Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.

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2001)). Leave to amend is not automatic, however. The Ninth Circuit considers a motion for

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leave to amend under five factors: bad faith, undue delay, prejudice to the opposing party, futility

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of amendment, and whether the plaintiff has previously amended the complaint. Nunes v.

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Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). The Ninth Circuit has held that “it is the

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consideration of prejudice to the opposing party that carries the greatest weight.” Eminence

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Capital, 316 F.3d at 1052. Further, the Ninth Circuit “differentiate[s] between pleadings

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attempting to amend claims from those seeking to amend parties.” Union Pac. R. Co. v. Nevada

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Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991) (emphasis in original).

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Here, plaintiffs filed their complaint against defendant Shasta-Cascade, doing

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business as North Valley Collection Bureau, alleging violations of the Fair Debt Collection

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

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Code Civ. Proc. § 1788 et seq. ECF No. 20; see generally ECF No. 1. In March 2016, plaintiffs

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amended the complaint to include Linda Benner, owner of Shasta-Cascade, after receiving no

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response from Shasta-Cascade. Id.; see generally ECF No. 15. In the process of serving the

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defendants with the First Amended Complaint, plaintiffs learned that defendant Shasta-Cascade

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had been sold by John Franklin, the agent for service of process. Id. Plaintiffs also learned that

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defendant Shasta-Cascade is now operating as Statewide Collections Inc. (Statewide). Plaintiffs

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thus now seek to add both Statewide and Franklin as defendants.

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Plaintiffs’ motion does not stem from bad faith and will not cause undue delay, as

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plaintiffs immediately sought to amend the complaint after learning defendant Shasta-Cascade

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now operates as Statewide. There is also no prejudice to any opposing party as neither of the

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defendants named in the First Amended Complaint have appeared or responded. Similarly,
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amendment is not futile if the naming of the new parties allows the case to proceed. If the new

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parties do not appear, then plaintiffs may move for entry of default and default judgment.

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Accordingly, the court GRANTS plaintiffs’ ex parte application for leave to

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amend. Plaintiffs shall file the proposed Second Amended Complaint as a separate document on

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the court’s docket of this case within seven (7) days. The Initial Scheduling Conference is reset

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for July 21, 2016 at 2:30 p.m., with a Joint Status Report filed in advance as required by this

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court’s scheduling order and the local rules.

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This order resolves ECF No. 20.

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IT IS SO ORDERED.

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DATED: May 3, 2016.

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UNITED STATES DISTRICT JUDGE

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