SUESZ v. MED-1 SOLUTIONS, LLC
Filing
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ORDER denying Plaintiff's 68 Motion for Leave to File First Amended Complaint. (S.O.). Signed by Magistrate Judge Mark J. Dinsmore on 7/6/2015. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARK SUESZ,
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Plaintiff,
vs.
MED-1 SOLUTIONS, LLC,
Defendant.
No. 1:12-cv-01517-WTL-MJD
ORDER ON MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
This matter comes before the Court on Plaintiff’s Motion for Leave to File First
Amended Complaint. [Dkt. 68.] For the reasons set forth herein, Plaintiff’s motion to amend is
DENIED.
I. Background
This case concerns allegations that the debt collection practices of Med-1 Solutions, Inc.
(“Defendant”) violate the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq.
(“FDCPA”). On October 18, 2012, Mark Suesz (“Plaintiff”) filed his original Complaint. [Dkt.
1.] The Complaint named “Mark Suesz, on behalf of plaintiff and a class” as the Plaintiff. [Dkt. 1
at 1.] On April 2, 2015, the Court set a deadline of April 13, 2015 to file a motion for leave to
amend the Complaint. [Dkt. 69 at 1.] Plaintiff thereafter timely moved for leave to file his First
Amended Complaint (“FAC”). [Dkt. 68.]
The proposed FAC makes two changes to the original complaint. First, the FAC seeks to
change the putative class’s definition. [Dkt. 68-1 ¶ 31.] On June 15, 2015, however, Plaintiff
filed an Unopposed Motion to Withdraw Amended Motion for Class Certification without
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Prejudice, [Dkt. 80], which motion the Court granted on June 17, 2015. [Dkt. 81.] This case thus
no longer involves any class allegations, and the Motion for Leave to File First Amended
Complaint is accordingly DENIED AS MOOT insofar as the motion seeks to modify the
putative class definition.
The proposed FAC then seeks to add Tressa Bowman as an additional plaintiff. [Dkt. 68
¶ 2.] Bowman’s allegations against Defendant center on Defendant’s purported collection
techniques for an alleged healthcare debt between 2011 and 2013. [Dkt. 68-1 ¶¶ 16-22.]
Defendant originally filed suit against Bowman on October 11, 2011 in Pike Township small
claims court. [Dkt. 67-2 at 2.] Bowman was not a resident of Pike Township, and the contract for
the alleged debt was not signed in Pike Township. [Dkt. 68-1 ¶¶ 18-19.] After said Township
court entered judgment in favor of Defendant on November 10, 2011, Defendant initiated a
proceeding supplemental against Bowman in Pike Township on or about September 30, 2013.
[Dkt. 67-2 at 4.]
II. Discussion
In its Motion to Amend, Plaintiff contends that leave to amend to add Bowman as a
plaintiff is justified because Bowman has “identical claims” to Plaintiff. [Dkt. 68 ¶ 5.] Although
Plaintiff acknowledges the possibility that the statute of limitations has run on Defendant’s
purported first violation of the FDCPA regarding Bowman on October 11, 2011, Plaintiff asserts
that the proceedings supplemental filed against Bowman on September 30, 2013 constituted a
“separate violation[n] of the FDCPA” and therefore began a new statute of limitations. [Dkt. 68 ¶
6.] Plaintiff contends that the statute of limitations on Bowman’s proceedings supplemental was
tolled during this putative class action suit, or, alternatively, that the filing of the amendment at
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bar will relate back to the original filing date of this suit on October 18, 2012. [Dkt. 68 ¶ 6, Dkt.
72 at 1.]
Defendant opposes leave to amend on the grounds that the proposed amendment would
be futile. It claims that the statute of limitations has run with respect to any FDCPA violation that
may have occurred both when Defendant filed the original suit against Bowman (on October 11,
2011), and when Defendant initiated the proceedings supplemental (on September 27, 2013).
[Dkt. 70 ¶¶ 4, 12.] Defendant disputes the application of the tolling principle, as Defendant
claims that Bowman falls “outside of the [original] class definition,” and therefore “the statute
has not been tolled as to her.” [Dkt. 70 ¶ 8-9.] Alternatively, Defendant contests the claim that
“the filing of a proceedings supplemental under Indiana law is an independent violation” of the
FDCPA. [Dkt. 70 at 3 n.1.]
Federal Rule of Civil Procedure 15(a)(2) allows a party to amend a pleading “only with
the opposing party’s written consent or the court’s leave” and instructs trial courts to “freely give
leave when justice so requires.” This liberal policy furthers the goal of deciding cases on their
merits, see, e.g., Barry Aviation Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687
(7th Cir.2004), but there are nonetheless limits on this policy. In particular, leave to amend
pleadings will be denied “where there is 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, or futility of the
amendment.” Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir.1991) (citing Foman v. Davis,
371 U.S. 178, 183 (1962)). Ultimately, the decision whether to grant leave is “purely within the
sound discretion of the district court.” Brunt v. Serv. Employees Int’l Union, 284 F.3d 715, 720
(7th Cir. 2002).
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In Indiana, a proceedings supplemental is a post-judgment action to determine the assets
of the debtor and assess his or her ability to pay. Indiana Trial Rule 69(E). Plaintiff contends that
the proceedings supplemental against Bowman constituted a separate violation of the FDCPA
and restarted the statute of limitations. [Dkt. 68 ¶ 6.] In making this claim, Plaintiff cites
Blakemore v. Pekay, 895 F. Supp. 972 (N.D. Ill. 1995) (garnishment writ is a separate legal
action subject to FDCPA), Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1515 (9th
Cir.1994) (“legal action” as used in the FDCPA includes “all judicial proceedings, including
those in enforcement of a previously-adjudicated right”), and Collins v Erin Capital Mgmt., LLC,
290 F.R.D. 689, 698 (S.D. Fla. 2013) (“the filing of the garnishment proceeding established an
independent violation of the FDCPA for the purpose of calculating the limitations period”). [Dkt.
68 ¶ 6, Dkt. 72 at 5-6.] None of these cases is persuasive.
Blakemore stands as “a single outlier in a wave of district court opinions that hold only
the filing of the collection case initiates the running of the statute of limitations.” Hill v.
Freedman Anselmo Lindberg, LLC. 2015 WL 2000828, at *3 (N.D. Ill. May 1, 2015); see also
id. at *2 (collecting cases); accord, e.g., Jones v. Blitt & Gaines P.C., 2015 U.S. Dist. LEXIS
61767, at *2 (N.D. Ill. May 12, 2015) (“Although the Seventh Circuit has not decided when a
violation occurs for a claim under §1692i, numerous courts in this district faced with this same
scenario have recently determined that the filing of a debt collection lawsuit or service on the
consumer starts the clock.”).
The Ninth Circuit’s Fox decision, relied upon by both the Plaintiff here and the court in
Blakemore, is likewise unpersuasive. Any attempt to rely upon Fox “is totally torpedoed” by the
Ninth Circuit’s “on-all-fours opinion three years later in Naas.” Mako v. Blatt, Hasenmiller,
Leibsker & Moore, LLC, 2015 U.S. Dist. LEXIS 6829, at *2 (N.D. Ill. January 20, 2015) (citing
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Naas v. Stolman, 130 F.3d 892 (9th Cir.1997)). In Naas, the Ninth Circuit stated that the court
had “never determined at which point the statute of limitations begins to run” under the FDCPA,
wholly undermining the purported strength of the court’s earlier ruling in Fox. 130 F.3d at 893.
Further, in an overt rejection of Blakemore, the Ninth Circuit concluded that “the statute of
limitations began to run on the filing of the complaint in the Municipal Court.” Id.
Finally, although none of the three cases cited by Plaintiff are binding authority, Collins
persuades the Court the least. The Collins court relies heavily on both Fox and Blakemore and
does not square its holding with the previously-decided Naas ruling. 290 F.R.D. at 697-98.
In light of this analysis, the Court holds that the statute of limitations for Bowman’s
alleged injury began to run from the filing of the original complaint against her in the Township
court on October 11, 2011. See Hill, 2015 WL 2000828, at *2 (collecting cases). The
proceedings supplemental did not affect the statute of limitations and did not constitute a
separate legal action for the purposes of the FDCPA. See Naas, 130 F.3d at 893. As a result, the
statute of limitations for Bowman’s claim expired on October 11, 2012, see 15 U.S.C. §
1692k(d), and the claim was thus already time-barred when Plaintiff filed his original complaint
on October 18, 2012. Any attempt to add Bowman as a Plaintiff would therefore be futile, and
the Court need not allow Plaintiff to amend his complaint to do so. See Villa, 924 F.2d at 632.
Plaintiff’s arguments about tolling and relation back do not change this result. Even if, as
Plaintiff asserts, the filing of the putative class action complaint tolled the statute of limitations
with respect to all asserted members of the class, this principle has no bearing on Bowman’s
claim: the original complaint defined the putative class to cover claims that were filed on or after
October 18, 2011. [See Dkt. 1 ¶ 23.] Because the claim against Bowman was filed on October
11, 2011, Bowman was not a member of the asserted class, and the statute with respect to
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Bowman was not tolled. Likewise, even if the Court accepts that Plaintiff’s proposed expanded
putative class definition related back to the filing of the original complaint, this contention does
not save Bowman’s claim. The original complaint, as noted above, was filed one week after the
statute had already expired on Bowman’s claim, and so even if the expanded class definition had
related back to the date of the original complaint, Bowman’s claim would remain time-barred.
Any attempt to add Bowman is accordingly futile, and the Court thus DENIES Plaintiff’s motion
insofar as it asks to do so.
III. Conclusion
In light of these considerations, Plaintiff’s Motion for Leave to File First Amended
Complaint, [Dkt. 68], is DENIED.
Denied: 07/06/2015
Distribution:
Copies will be sent to all counsel
of record by electronic mail via
the Court’s ECF system
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