Hooker v. Turning Point Capital, Incorporated et al
ORDER Granting Plaintiff's 19 Motion for Leave to File Third Amended Complaint and Denying Without Prejudice Plaintiff's 4 Motion to Certify Class. Signed by District Judge Terrence G. Berg. (Monda, H)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
RODGER HOOKER, on behalf
of himself and all others
Case No. 13-12369
HON. TERRENCE G. BERG
GREYSTONE ALLIANCE, LLC,
and TURNING POINT CAPITAL,
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD
AMENDED COMPLAINT (DKT. 19) AND DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION TO CERTIFY CLASS (DKT. 4)
Plaintiff Rodger Hooker (“Plaintiff”) seeks to bring a class action under the
Fair Debt Collection Practices Act against Defendants Turning Point Capital, Inc.,
and Greystone Alliance, LLC (“Defendants”). Before the Court are Plaintiff’s
motions for leave to file a third amended complaint (Dkt. 19) and for class
certification (Dkt. 4). Oral argument will not significantly aid the decision-making
process, thus these motions will be decided upon consideration of the briefs alone.
See E.D. Mich. LR(f)(2). Defendants filed no timely response to Plaintiff’s motion
for leave to amend, which is therefore unopposed. See E.D. Mich. LR 7.1(e)(2).
Plaintiff had originally sued Defendant Turning Point Capital, Inc. (“Turning
Point”), on behalf of himself and all others similarly situated, in a complaint filed on
May 29, 2013. In June 2013, Plaintiff learned that Turning Point merged with
Greystone Alliance, LLC (“Greystone”). After this merger, Plaintiff learned that
Turning Point ceased to exist and Greystone and Turning Point began operating
under the name of Greystone Alliance, LLC.
On or about August 7, 2013, in light of the merger between Turning Point
and Greystone, Plaintiff filed a first amended complaint, naming Greystone as the
sole Defendant (Dkt. 6). After the first amended complaint was filed, Plaintiff
discovered additional information relative to the merger between Greystone and
Turning Point. Specifically, pursuant to a protective order entered in this case,
Greystone disclosed to Plaintiff a copy of a Contribution Agreement between
Turning Point and Greystone. Greystone entered into the Contribution Agreement
on June 8, 2013 with Turning Point, Progeny RMB (“Progeny”), John C. Manley Jr.,
and Robert P. Manley, both of whom are individuals and shareholders of Progeny.
Under the Contribution Agreement, Progeny was the sole shareholder of Turning
Point; and, John C. Manley Jr., and Robert P. Manley were the sole shareholders of
Progeny. Turning Point contributed certain assets to Greystone, in exchange for the
ownership interest in Greystone issued to Progeny and, in turn, Progeny’s
shareholders. The Contribution Agreement contained mutual indemnification
clauses, pursuant to which Turning Point, Progeny, and Progeny’s shareholders
agreed to defend and indemnify Greystone from all claims arising from or relating
to Turning Point’s, Progeny’s, and Progeny’s shareholders’ conduct prior to the
closing date of the Contribution Agreement, while at the same time Greystone
agreed to defend and indemnify Turning Point, Progeny, and Progeny’s
shareholders from all claims arising from or relating to Greystone’s conduct prior to
the closing date of the Contribution Agreement.
Based on this information, Plaintiff filed a motion for leave to file a second
amended complaint, seeking to add Turning Point, Progeny, John C. Manley Jr.,
and Robert P. Manley as Defendants (Dkt. 15). On December 31, 2013, Greystone
filed a response in opposition to Plaintiff’s motion (Dkt. 16). On January 8, 2014,
after receiving Greystone’s response brief, Plaintiff withdrew his motion for leave to
file a second amended complaint (Dkt. 18). Based on a review of the Contribution
Agreement between Greystone and Turning Point, it now appears to Plaintiff that
Turning Point could still be liable for the alleged injury sustained by Plaintiff, and
all others similarly situated, and thus is an appropriate party to the present matter.
Plaintiff now moves for leave to file a third amended complaint. Plaintiff
seeks to amend his complaint to re-name Turning Point Capital as a Defendant in
this matter, in addition to Greystone. The allegations included in Plaintiff’s
proposed third amended complaint: (i) clarify factual circumstances previously
pleaded; (ii) expound upon legal theories previously delineated; and (iii) assert
claims that arise from the same set of operative facts as those previously set forth.
Rule 15(a)(2) provides that “a party may amend its pleading only with the
opposing party’s written consent or the court's leave. The court should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, amendments
should not be permitted in instances of “undue delay in filing, lack of notice to the
opposing party, bad faith by the moving party, repeated failure to cure deficiencies
by previous amendments, undue prejudice to the opposing party, and futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Applying this standard, the Court finds that granting Plaintiff leave to
amend to file a third amended complaint is appropriate. There is no undue delay,
lack of notice, bad faith, repeated failure to cure deficiencies or undue prejudice to
Defendants. Accordingly, Plaintiff’s proposed third amended complaint (Dkt. 19,
Ex. 1) is accepted for filing and Defendants are directed to file responsive pleadings
to the third amended complaint within the time limits set forth in Fed. R. Civ. P.
As to Plaintiff’s motion to certify class (Dkt. 4), since this motion is premised
upon the allegations set forth in the original complaint (Dkt. 1), that motion is
denied, without prejudice. Plaintiff is directed to re-file a new motion to certify
class, based upon the allegations contained in the third amended complaint, which
are materially different from the allegations contained in the original complaint.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: March 14, 2014
Certificate of Service
I hereby certify that this Order was electronically submitted on March 14,
2014, using the CM/ECF system, which will send notification to each party.
By: s/H. Monda for A. Chubb
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