Oatman v. InfoCision, Inc. et al

Filing 49

Opinion and Order signed by Judge James S. Gwin on 7/30/13. The Court denies Defendant Infocision's motion for reconsideration. Further the Court orders that on or before 8/14/13 Plaintiff Oatman make herself available for deposition as set forth in this order. The Court will permit Defendant Infocision to file a sur reply to plaintiff's motion for class certification by 8/21/13 with the sur reply not to exceed 15 pages. Finally, the Court denies as moot Defendant Infocision's earlier motion to strike the the class allegations in plaintiff's complaint. (Related Docs. 10 , 47 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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DORA OATMAN,
:
:
Plaintiff,
:
:
vs.
:
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INFOCISION, INC., et al,
:
:
Defendants.
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:
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CASE NO. 1:12-cv-2770

ORDER & OPINION
[Resolving Docs. 10, 47]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this proposed class action lawsuit, Plaintiff Dora Oatman says that Defendants InfoCision,
Inc., InfoCision Management Corporation, and IMC (collectively, “InfoCision”) engaged in
deceptive solicitation practices by misrepresenting the portion of solicited contributions that would
go to charity. The case came before the Court for a case management conference on March 13, 2013,
along with a related case, Munro v. InfoCision, Inc., et al,1/ on March 13, 2013. Shortly thereafter,
and following lengthy mediation, the parties in both cases represented that they would seek the
Court’s approval of a class action settlement encompassing both cases. On May 31, 2013, the
extended deadline to file proposed settlement documentation, the parties represented that they were
unable to agree on a final settlement.2/ On June 28, 2013, the plaintiffs in the Munro case agreed to
settle their claims on an individual basis.3/

1/

No. 1:12-cv-2979.
[Doc. 30, 31.]

2/
3/

[No. 1:12-cv-2979 Doc. 38.]

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Case No. 1:12-cv-2770
Gwin, J.
On July 10, 2013, Oatman then moved to amend her pleading, inter alia, to include class
allegations that were originally part of Munro’s complaint.4/ The Court granted Oatman’s motion.5/
InfoCision now moves for reconsideration.6/ Because the Court grants leave to amend
liberally, the Court DENIES InfoCision’s motion for reconsideration. However, on or before
August 14, 2013, the Court orders Plaintiff Oatman to make herself available for a deposition on
facts new to the amended complaint and relevant to class certification. Further, the Court will permit
InfoCision to file a sur reply to Plaintiff’s Motion for Class Certification on or before August 21,
2013, and not to exceed fifteen pages. Finally, in light of these developments, the Court DENIES
InfoCision’s earlier Motion to Strike the Class Allegations in Plaintiff’s Complaint as moot.
Federal Rule of Civil Procedure 15(a)(2) says 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.” Whether to grant leave to amend is committed to this Court’s discretion.7/
Oatman said that amendment would permit her “to fully address and remedy all damages
caused by InfoCision.”8/ InfoCision says that the Court already entered a scheduling order in this
case, and Federal Rule of Civil Procedure 16 says that “[a] schedule may be modified only for good
cause and with the judge's consent.” InfoCision also says that it will suffer prejudice because it had
a pending motion to dismiss and the newly proposed class is substantially broader than the previous
class. Finally, InfoCision also argues that amendment is futile because the proposed amended class

4/

[Doc. 39.]

5/

[Doc. 43.]

6/

[Doc. 47.]

7/

Glazer v. Chase Home Finance, LLC, 704 F.3d 453, 458-59 (6th Cir. 2013).
[Doc. 39.]

8/

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Case No. 1:12-cv-2770
Gwin, J.
cannot be certified.
The meandering course by which this case arrived at this stage mitigates the force of
InfoCision’s arguments. The same good cause that led this Court to grant the parties a continuance
to file settlement paperwork and, then, a further continuance to file class-certification briefing and
dispositive motions also provides good cause for granting Oatman leave to amend here. When
Oatman represented to this Court that she did not need to amend her pleadings, both she and
InfoCision believed that a companion case would absorb many of the allegations that she now adds
to her complaint. In light of Rule 15's instruction that the Court is to give leave freely, the Court
finds that these delays and the settlement of the Munro case provide good cause to permit Oatman
to amend her complaint after the Court’s initial deadlines—especially in context of Rule 15's
instruction.
To mitigate InfoCision’s concerns of prejudice, the Court orders Oatman to be available for
a deposition. The suggestion that InfoCision did not know that it would have to defend against these
allegations at all has considerably less force in light of the Munro case. Further, any such prejudice
would also attach to Oatman, whose discovery may not, to this point, have encompassed such
allegations. And, to the extent that it did, would have put InfoCision on notice that Oatman was
investigating in such practices. Thus, InfoCision should be able to conduct any further discovery
within the time provided.
Finally, InfoCision’s argument that amendment is futile is an invitation to prejudge the merits
of Oatman’s Motion for Class Certification. The Court will consider these arguments in a future
Order.
For these reasons, the Court DENIES InfoCision’s motion for reconsideration. However,
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Case No. 1:12-cv-2770
Gwin, J.
on or before August 14, 2013, the Court orders Plaintiff Oatman to make herself available for a
deposition related to facts new to the amended complaint and relevant to class certification. Further,
the Court will permit InfoCision to file a sur reply to Plaintiff’s Motion for Class Certification on
or before August 21, 2013, and not to exceed fifteen pages. Finally, in light of these developments,
the Court DENIES InfoCision’s earlier Motion to Strike the Class Allegations in Plaintiff’s
Complaint as moot.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: July 30, 2013

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