FEUERSTACK v. WEINER, ESQ. et al

Filing 28

OPINION. Signed by Magistrate Judge Joseph A. Dickson on 7/30/13. (gmd, )

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

·--------------------------------------------------------------------------,
EDWARD FEUERSTACK, on behalf of
.,
himself and all others similarly situated,
Civil Action No. 2:12-cv-04253 (SRC) (JA )
Plaintiffs,
OPINION

v.
STANLEY WEINER, ESQ.; and JOHN
DOES 1-25,
Defendants.

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JOSEPH A. DICKSON, U.S.M.J.
This matter comes before the Court upon motion by plaintiff Edward Feuerstack, n
behalf of himself and all others similarly situated ("Plaintiff'), to amend the complaint pursu t
to Fed. R. Civ. P. 15 to redefine the scope ofthe putative class from New Jersey consumers o
consumers nationwide (the "Motion to Amend"). Pursuant to Rule 78 of the Federal Rules f
Civil Procedure, no oral argument was heard. Upon consideration of the parties' submissio s,
and for the reasons stated below, Plaintiff's Motion to Amend is denied.
I.

BACKGROUND.

The present motion in this class action, which alleged violations of the Fair D t
Collection Practices Act, 15 U.S.C. § 1692, et seq. (the "FDCPA"), requires the Court to
determine whether Plaintiff should be permitted to amend his complaint to redefine the putat e
class to include not only consumers in New Jersey, but consumers nationwide.

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In the original complaint, filed on July 10, 2012 (Compl., ECF No. 1) (the "Complaint ),

Plaintiff alleged that defendant Stanley Weiner, Esq. ("Defendant") violated the FDCPA

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sending improper written collection communications, specifically by (a) failing to disclose
consumer's right to obtain verification of the alleged debt; (b) failing to disclose that Defend
was not admitted or licensed to practice law in the State ofNew Jersey and, therefore, could
commence a lawsuit against consumers in the State of New Jersey; (c) falsely representing

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legal status of the alleged debt; and (d) falsely representing that the filing of legal action wo
result in additional expenses to the consumer. (Id.

at~

35).

Plaintiff defined the putative class as "[a]ll New Jersey consumers who were s
collection letters and/or notices from [Defendant] that contained at least one of the aile
violations arising from [Defendant's] violation of[the FDCPA]." (Id.

at~

11) (emphasis adde ).

Plaintiff further defined the putative class period as "begin[ning] one year [prior] to the filing
this Action." (Id.).
Plaintiff asserted that during discovery, he learned that "the class of persons negativ
impacted by the Defendant's FDCPA violations extended beyond just those residing in N w
Jersey." (Br. Supp. Mot. Amend 2, ECF No. 23-3). Therefore, Plaintiff now seeks to rede
the putative class as: "all consumers who were sent collection letters and/or notices fr
[Defendant] that contained at least one of the alleged violations arising from [Defendan s]
violation of [the FDCPA]." (Proposed Am. Compl.
period remained unchanged.

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11, ECF No. 23-3). The putative cl s

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Defendant opposed the Motion to Amend on the grounds that the claims of the putaf e
nationwide class members are barred based on the expiration of the statute of limitations,

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that relation back is improper under Fed. R. Civ. P. 15(c)(1)(C). 1
II.

DISCUSSION.

Our analysis of relation back begins with Fed. R. Civ. P. 15(c), which governs
relation back of amendments to pleadings.
Plaintiff argued that the proposed amendment expanding the scope of the putative cl s
relates back to the filing of the original complaint under Fed. R. Civ. P. 15(c)(l)(B), wh
permits relation back where "the amendment asserts a claim or defense that arose of the s
conduct, transaction or occurrence set out ... in the original pleading." (Br. Supp. Mot. Am
4, ECF No. 23-3). However, when an amendment seeks to change a party against whom a cl
is asserted, as opposed to changing merely the allegations set forth in the pleading, the relaf n
back rule is more stringent. See Cliffv. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1131
(11th Cir. 2004). In such an instance, an amendment relates back:
ifRule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party to
be brought in by amendment:
(i)

received such notice of the action that it will not be
prejudiced in defending on the merits; and

1

Defendant also argued that the Motion to Amend should be denied as untimely because Plaintiff failed to make
Motion returnable by Aprill5, 2013, as required by the Court's Amended Pretrial Scheduling Order of May 4, 2
(ECF No. 19). Plaintiff filed the Motion to Amend on Aprilll, 2013.
Where deadlines for amending pleadings are the subject of a scheduling order and the deadlines
passed, the moving party must meet Rule 16's good cause standard in order to amend. Stallin s ex rel. Esta
Stallings v. IBM Coro., CIV. 08-3121 (RBK/JS), 2009 WL 2905471 (D.N.J. Sept. 8, 2009) (citation omitt
Under Rule 16, a schedule may be modified only for "good cause," which requires a showing that the d
"stemmed from any mistake, excusable neglect, or any other factor which might understandably account for fai
of counsel to undertake to comply with the Scheduling Order." Fermin v. Toyota Material Handling. USA. Inc.,
10-3722, 2012 WL 1393074, *3 (D.N.J. April 23, 2012)). The Court finds that good causes exists to modify
Amended Pretrial Scheduling Order to allow the Court to consider the Motion to Amend based on Plainti
mistake, the lack of undue delay and the absence of any prejudice to Defendant.

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of
).
ay
e
o.
he
s

-

(ii)

knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party's identity.

Fed. R. Civ. P. 15(c)(l)(C). As a result, when an amendment seeks to change a party agai st
whom a claim is asserted (which is, in most circumstances, the defendant), Rule 15(c)(l)
requires more than a showing that the claim arose out of the same conduct or transact' n
originally pleaded; rather, this provision introduces considerations of both prejudice and notic
In this Circuit, three requirements must be satisfied in order for relation back pursuant o
Rule 15(c)(l)(C) to be appropriate. First, "the claim or defense asserted in the amended plead'
must arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth ·n
the original pleading." Fed. R. Civ. P. 15(c)(l)(C). Second, ''within the period provided by R le
4(m) for service of the summons and complaint, the party to be brought in . . . received s
notice of the action that it will not be prejudiced in defending on the merits." Fed. R. Civ.
15(c)(l)(C)(i). Third, within the period provided by Rule 4(m), the defendant "knew or sho ld
have known that the action would have been brought against it, but for a mistake concerning

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proper party's identity." Fed. R. Civ. P. 15(c)(l)(C)(ii).
Rule 15(c)(l)(C) does not expressly refer to the addition of a new plaintiff; it faci
applies only to an amendment that "changes the party or the naming of the party against who

a

claim is asserted." Fed. R. Civ. P. 15(c)(l)(C) (emphasis added). However, the Third Cir
(and numerous other courts) has applied its requirements to the addition of new plaintiffs.
Cmty. Bank of N. Virginia, 622 F.3d 275, 297 (3d Cir. 2010) (citing Nelson v. Alle
County. 60 F.3d 1010, 1014 n. 7 (3d Cir. 1995)); see also Advisory Committee Notes on
1996 Amendments to Fed. R. Civ. P. 15 ("The relation back of amendments changing plaint fs
is not expressly treated in revised rule IS(c) since the problem is generally easier [than that of

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amendments changing defendants]. Again the chief consideration of policy is that of the stan e
of limitations, and the attitude taken in . . . Rule 15(c) toward change of defendants extends y
analogy to amendments changing plaintiffs.").
There is a dispute among courts, however, as to the appropriate standard to apply wb

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an amendment seeks to add additional plaintiffs (as opposed to additional defendants pr
additional claims against existing defendants) -particularly in the class action context. So

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courts, for example, have relaxed the mistake requirement. Allen v. Nat'l R.R. Passemzer Cm "·
(Amtrak), No. 03-cv-3497, 2004 WL 2830629, *9 (E.D. Pa. Dec. 7, 2004); see also Blanchard lv.
Edgemark Fin. Corp., 94 C 1890, 2000 WL 33223385, *7 (N.D. Ill. May 22, 2000) (compari g
In re Bausch & Lamb. Inc. Sec. Litig .. 941 F. Supp. 1352, 1364 (W.D.N.Y. 1996), and Nelso11 v.
County of Allegheny, 60 F.3d 1010, 1014 (3d Cir. 1995), with U.S. ex rei. Koch v. Koch Ind1 &.,
188 F.R.D. 617, 1999 WL 504545, at *13-14 (N.D. Okla. 1999)). Moreover, other circuits h~ lie
adopted tests that differ from the traditional three element Rule 15(c)(1)(C) analysis pr
determining whether an amendment that adds plaintiffs should relate back in the class act' bn
context. For instance, the Ninth Circuit developed a test whereby an amendment relates bad if
(1) the original complaint gave the defendant adequate notice of the claims of the new 'yproposed plaintiff, (2) the relation back does not unfairly prejudice the defendant, and (3) then is
an identity of interests between the original plaintiff and the newly-proposed plaintiff. See Q

rff

v. Payco Gen. Am. Credits. Inc., 363 F.3d 1113, 1131-32 (11th Cir. 2004) (citing In re Svn ex
Corp. Sec. Litig., 95 F.3d 922, 935 (9th Cir. 1996)). Although these courts do not explici ly
apply Rule 15(c)(1 )(C), their judicially-created tests still tum upon considerations of notice ~ ~d
prejudice. Id. However, under these tests, courts generally assume that if there is an identity lof
interest among the original and new plaintiffs, a defendant had notice of claims of such plaint' fts

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and would suffer no prejudice by their addition. Blanchard v. Edgemark Fin. Corp., 94 C 18

,

2000 WL 33223385, *7 (N.D. Ill. May 22, 2000); see also Pa e v. Pension Ben. Guar. Co .,
130 F.R.D. 510, 512-13 (D.D.C. 1990).
Indeed, in In re Cmty. Bank of N. Virginia, the Third Circuit recognized the possi le
incongruity of applying Rule 15(c)(l)(C) to an amendment that adds plaintiffs to a class acti
622 F.3d 275, 298 (3d Cir. 2010).

.

There, the Third Circuit contemplated a hypotheti al

situation in which a named class member died or no longer had standing to pursue a claim n
behalf of the class. Id. The Court stated that applying Rule 15(c)(1)(C), with its mist e
requirement, to an amended class complaint that sought to add a new plaintiff for these reas

s

"could never relate back to the initial complaint ... because the failure to name the party a a
plaintiff in the original complaint was not the result of a 'mistake concerning the proper part 's
identity."' Id. The Third Circuit stated: "In this context, the better conclusion may be that
amended complaint adding a class member of the new named plaintiff need only satisfy R e
15(c)(1)(C) to relate back to an earlier complaint" -which would require only that the clai s
arise out of the same conduct, transaction or occurrence set out in the original pleading. Id.
Nevertheless, this Court is guided by precedent in this Circuit that continues to dem
the satisfaction of all three elements, including both a mistake concerning the identity of the n w
party, and notice within the time provided by Rule 4(m). See Nelson, 60 F.3d at 1014; Alle v.
Nat'l R.R. Passenger Corp., (Amtrak), 2004 WL 2830629 at *9. In so doing, the Court finds t at
Plaintiffs amendments expanding the putative class from New Jersey consumers to consum rs
nationwide do not relate back to the initial complaint because Plaintiff failed to satisfy the no
and prejudice requirements.

6

e

Plaintiffs contended that the claims asserted on behalf of the nationwide class involve t e
same basic conduct alleged in the original complaint, which was filed on July 10, 2012, namt y
the filing of improper collection letters that violate the FDCPA. However, it is indisputable t

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Defendant was not on notice that he could be called upon to defend against claims on a
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nationwide basis until January 23, 2013, when Plaintiff first filed a motion to amend

Complaint- which is beyond the 120 day period provided by Rule 4(m). (Mot. Amend, Ec F
No. 11).2
Statutes of limitations ensure that defendants are "protected against the prejudice t>f
having to defend against stale claims, as well as the notion that, at some point, claims should

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laid to rest so that security and stability can be restored to human affairs." Nelson v. Cntv. t>f
Allegheny, 60 F.3d at 1014 (citations omitted). In order to preserve this protection, the relati< pback rule requires plaintiffs to show that the already commenced action sufficiently embraces

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amended claims so that defendants are not unfairly prejudiced by these late-coming plaintiffs a d
that plaintiffs have not slept on their rights.

Id. Although there is a conflict of author Ly
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regarding whether an amended pleading asserting a nationwide class can relate back to an ini al
pleading asserted in a smaller class - indeed, the Third Circuit acknowledged such a conflict ·n
In re Cmty. Bank ofN. Virginia, 622 F.3d at 306 n. 23, but did not resolve the issue- this Co rt
finds that, in light of precedent in this Circuit that continues to demand the satisfaction of ~1
three elements, Plaintiff failed to satisfy the notice element of Rule 15(c)(l)(C). In re Cm lv.
Bank of N. Virginia, 622 F.3d 275, 307 (3d Cir. 2010) (comparing Cliff v. Pavco Gen.

An.

Credits, Inc .. 363 F.3d 1113, 1131-33 (11th Cir.2004) (holding that an amended compla nt
expanding the class action to assert a nationwide class did not relate back under Rule 15(c) to

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initial complaint, which asserted only a statewide class); with Schillin~er v. Union Pac. R.R. C t>.
2

Plaintiff ultimately withdrew its original motion to amend (ECF No. 11) by consent order (ECF No. 16).

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{

425 F.3d 330, 334 (7th Cir.2005) ("[T]he expansion of a proposed class does not change

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parties to the litigation nor does it add new claims.")). Without adequate notice, the Court fi

s

that the expansion of the proposed class would unduly prejudice Defendant. Thus, amendment ·s
improper under Rule 15(c).

III.

CONCLUSION.

For the reasons set forth above, Plaintiffs Motion to Amend (ECF No. 23) is denied.

SO ORDERED

cc:

Hon. Stanley R. Chesler, U.S.D.J.

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