Kelley v. Enhanced Recovery Company, LLC
Filing
57
MEMORANDUM OPINION AND ORDER GRANTING 42 PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT. The parties are DIRECTED TO MEET AND CONFER regarding dates to be included in a proposed second amended scheduling order before the scheduling c onference set for April 19, 2016. The Clerk is DIRECTED to file ECF No. 53 as the plaintiff's amended complaint. Signed by Senior Judge Frederick P. Stamp, Jr. on 4/18/2016. (copy to counsel via CM/ECF) (nmm) (Main Document 57 replaced on 4/18/2016 w/corrected document ) (nmm). Modified on 4/18/2016: NEF Regenerated (nmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PATTY KELLEY,
Plaintiff,
v.
Civil Action No. 5:15CV10
(STAMP)
ENHANCED RECOVERY COMPANY, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO FILE AMENDED COMPLAINT
On March 18, 2016, the plaintiff filed a motion for leave to
file an amended complaint.
ECF No. 42.
The plaintiff seeks to add
as a defendant Synchrony Bank (“Synchrony”).
The defendant filed
a response in opposition, arguing that the plaintiff failed to
demonstrate good cause for not seeking to amend the complaint
before the deadline for amending pleadings set in the scheduling
order.
For the following reasons, the plaintiff’s motion is
granted.
I.
Background
The plaintiff, Patty Kelley (“Kelley”), originally filed this
West Virginia Consumer Credit and Protection Act (“WVCCPA”) in the
Circuit Court of Marshall County, West Virginia. In her complaint,
Kelley alleges that the defendant, Enhanced Recovery Company, LLC
(“Enhanced Recovery”), continued to contact her numerous times to
attempt to collect a debt from her after she informed Enhanced
Recovery that she was represented by counsel.
The complaint
asserts four claims:
violation of the WVCCPA, violation of the
West Virginia Computer Crime and Abuse Act (“WVCCAA”), intentional
infliction of emotional distress, and common law invasion of
privacy.
The plaintiff seeks compensatory and punitive damages.
Enhanced Recovery removed the case to this Court.
Kelley filed a
motion to remand to state court, and this Court denied that motion.
The parties have now filed a joint motion to amend the scheduling
order, and this Court has set a scheduling conference regarding
that motion for April 19, 2016.
The plaintiff then filed a motion
to amend the complaint to add a new defendant, and the defendant
filed a response in opposition, arguing that the plaintiff failed
to show good cause for not seeking to amend the complaint earlier.
II.
Applicable Law
Where a party seeks to amend its pleadings after the deadline
for such amendments in the scheduling order has passed, the party
must show good cause under Rule 16 for why the party failed to
timely file a motion to amend.
Nourison Rug Corp. v. Parvizian,
535 F.3d 295, 298 (4th Cir. 2008).
Good cause requires that the
party has been diligent in seeking to abide by deadlines.
Howard, 484 F. App’x 805, 815 (4th Cir. 2012).
Cook v.
If the party
demonstrates good cause, then the court should deny the party’s
motion “only when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the moving
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party, or the amendment would be futile.” Johnson v. Oroweat Foods
Co., 785 F.2d 503, 509 (4th Cir. 1986).
III.
Discussion
The plaintiff seeks to name Synchrony as a defendant on the
theory that Enhanced Recovery was acting as Synchrony’s agent when
it allegedly violated the WVCCPA, WVCCAA, and allegedly committed
various torts.
The plaintiff argues that she was not aware that
the defendant was acting as Synchrony’s agent until the plaintiff’s
counsel took the defendant’s Rule 30(b)(6) deposition on February
22, 2016.
Further, the plaintiff provided as attachments to her
reply memorandum correspondence between counsel showing that the
plaintiff
deposition
was
unable
before
the
to
take
the
amendment
defendant’s
deadline
Rule
passed
30(b)(6)
because
the
defendant failed to cooperate in scheduling the deposition to
coincide with another similar civil action the plaintiff’s counsel
is engaged in against the defendant.
This Court finds that it was
not unreasonable for plaintiff’s counsel to seek to coordinate the
Rule 30(b)(6) depositions between those civil actions because
coordination would serve to save the parties time and expense, as
both civil actions are based on similar conduct and the defendant
and its officers are located in Florida.
The defendant argues that the plaintiff should have discovered
that Synchrony was a potential defendant in written discovery.
Specifically, the defendant argues that the plaintiff knew that her
3
creditor was GE Capital Consumer Bank (“GE Capital”) and that GE
Capital changed its name to Synchrony Bank. Further, the defendant
argues that the plaintiff should have discovered that Synchrony was
a potential defendant because she knew Synchrony was her creditor
before filing this civil action and because she sent letters to
Synchrony informing it that she was represented by counsel and
unable to pay her debt.
However, the plaintiff seeks to name
Synchrony Bank as a defendant on the theory that Synchrony is
liable for the defendant’s alleged statutory violations and torts
committed as Synchrony’s agent.
Thus, regardless of whether the
plaintiff by that time knew that GE Capital had changed its name to
Synchrony Bank, the plaintiff did not discover that the defendant
may have been acting as Synchrony’s agent until the Rule 30(b)(6)
deposition.
that
GE
Further, it is unlikely that the plaintiff was aware
Capital
had
changed
its
name
to
Synchrony,
as
the
correspondence the defendant cites are addressed to “GE Capital
Retail Bank.”
See ECF No. 1-1 at 11.
Therefore, this Court finds
that the plaintiff has show good cause for why she was unable to
comply with the deadline set forth in the scheduling order to amend
the pleadings.
Further, the plaintiff has demonstrated that the proposed
amended complaint will not prejudice the defendant, is not futile,
and is not sought in bad faith.
The amendment does not affect the
viability or theory of the plaintiff’s cause of action against the
4
defendant.
Further, the parties’ joint motion to amend the
scheduling order is pending before this Court, and any additional
time the defendant may need to conduct discovery or further develop
its defense may be considered in fashioning a second amended
scheduling order.
IV.
Conclusion
For good cause shown, the plaintiff’s motion for leave to file
an amended complaint (ECF No. 42) is GRANTED.
The parties are
DIRECTED TO MEET AND CONFER regarding dates to be included in a
proposed second amended scheduling order before the scheduling
conference set for April 19, 2016.
IT IS SO ORDERED.
The Clerk is DIRECTED to file ECF No. 53 as the plaintiff’s
amended complaint, and to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
April 18, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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