Jenkins v. Messerli & Kramer, P.A.

Filing 28

ORDER - Plaintiff's Motion for Leave to File First Amended Complaint (Filing No. 20 ) is granted. Plaintiff shall file his amended complaint by April 5, 2018. Defendant shall file an answer by April 19, 2018. A telephonic planning conference wi ll be held before the undersigned on May 3, 2018, at 10:00 a.m. Telephone conference instructions are found at Filing No. 13 . In advance ofthe conference, the parties shall confer and submit jointly proposed caseprogression deadlines to the Court via email at [e-mail]. The proposed case progression deadlines should be emailed to chambers no later than April 26, 2018. Ordered by Magistrate Judge Susan M. Bazis. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEE A. JENKINS,
Plaintiff,

8:17CV207

vs.
ORDER
MESSERLI & KRAMER, P.A.,
Defendant.
This matter is before the Court on Plaintiff’s Motion for Leave to File First Amended
Complaint. (Filing No. 20.) For the reasons set forth below, the motion will be granted.

BACKGROUND

This action involves allegations that Defendant violated the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq., and the Nebraska Consumer Protection Act, Neb. Rev.
Stat. § 59-1601 et seq. (Filing No. 1.) Plaintiff alleges that Defendant sent him an unsigned
letter threatening to file a lawsuit in the event an alleged debt was not paid. Plaintiff maintains
that a judgment had already been taken on that debt. Thus, Plaintiff contends that in attempting
to collect the alleged debt, Defendant made false representations as to the character, amount, or
legal status of the debt; threatened to take an action that cannot be legally taken; and made a false
representation that the unsigned letter was from an attorney.

Plaintiff now wishes to amend his Complaint to include a request that this matter be
certified as a class action. (Filing No. 20.) The proposed amended complaint alleges that
Defendant violated the Fair Debt Collection Practices Act and Nebraska Consumer Protection
Act by routinely sending letters, similar to the one sent to Plaintiff, to other consumers. (Filing
No. 20-1.) Defendant opposes the motion, arguing that there are no facts to support a class
action. Defendant argues that the letter sent to Plaintiff was the result of a bona fide error, and
that Plaintiff has no evidence that similar, unsigned letters were sent to other consumers.

DISCUSSION

Under Federal Rule of Civil Procedure 15, the Court should “freely give leave” to amend
a pleading “when justice so requires.” Fed. R. Civ. P. 15. Nevertheless, a party does not have an
absolute right to amend and “denial of leave to amend may be justified by undue delay, bad faith
on the part of the moving party, futility of the amendment or unfair prejudice to the opposing
party.” Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir. 2008) (quotation and citation omitted).
The party opposing amendment bears the burden of showing that the amendment would be
prejudicial or futile. Sokolski v. Trans Union Corp., 178 F.R.D. 393, 396 (E.D. N.Y. 1998).
Whether to grant a motion for leave to amend is within the sound discretion of the district court.
Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).

Having reviewed the matter, the Court will allow Plaintiff to file an amended complaint.
The Court finds that amendment will not prejudice Defendant. This action was filed on June 15,
2017 and discovery is in its early stages. (Filing No. 1.) A planning conference has not been
held, a final progression order has not been issued, and a trial date has not been set. Thus, the
filing of an amended complaint will not necessitate modifying any case progression deadlines.

Moreover, it is not readily apparent that amendment would be futile or that the
amendment asserts clearly frivolous claims. See Becker v. Univ. of Neb., 191 F.3d 904, 908 (8th
Cir. 1999) (“Likelihood of success on the new claim or defenses is not a consideration for
denying leave to amend unless the claim is clearly frivolous”); Gamma-10 Plastics, Inc. v. Am.
President Lines, 32 F.3d 1244, 1255 (8th Cir. 1994) (stating that a motion to amend should only
be dismissed on the merits if it asserts clearly frivolous claims or defenses). The parties have
offered divergent facts. Plaintiff asserts that Defendant sends letters such as the one at issue
routinely, while Defendant maintains that this letter was the result of a one-time error. The Court
will not resolve factual disputes through a motion to amend. See Santiago v. Steinhart, No. 89
Civ. 2069, 1993 WL 410402 (S.D. N.Y. Oct. 13, 1993) (“[I]f the alleged futility is based on
factual issues which are in dispute, leave to amend should not be denied”).
amendment will be permitted.

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Therefore,

Accordingly,

IT IS ORDERED:

1.

Plaintiff’s Motion for Leave to File First Amended Complaint (Filing No. 20) is

granted. Plaintiff shall file his amended complaint by April 5, 2018. Defendant shall file an
answer by April 19, 2018.

2.

A telephonic planning conference will be held before the undersigned on May 3,

2018, at 10:00 a.m. Telephone conference instructions are found at Filing No. 13. In advance of
the conference, the parties shall confer and submit jointly proposed case progression deadlines to
the Court via email at [e-mail]. The proposed case progression deadlines should
be emailed to chambers no later than April 26, 2018.
Dated this 3rd day of April, 2018.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge

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