O'Boyle v. Real Time Resolutions Inc
ORDER signed by Judge Lynn Adelman on 04/09/2018. IT IS ORDERED that the plaintiffs motion to alter judgment 18 is DENIED. (cc: all counsel) (lls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 17-C-0957
REAL TIME RESOLUTIONS, INC.,
DECISION AND ORDER
Anne O’Boyle brings a motion for reconsideration, pursuant to Federal Rule of
Civil Procedure 59(e), of my order dismissing this case under Federal Rule of Civil
Procedure 12(b)(6). (See Order of Dec. 22, 2017, ECF No. 16.) I have reviewed the
motion and the parties’ briefs, and I do not see any grounds for reconsideration. My
reasons for dismissing the complaint were adequately set out in my prior order, and for
the most part I do not find it necessary to discuss the arguments in plaintiff’s motion for
reconsideration. However, I will address the plaintiff’s argument that I should have
granted her an opportunity to re-plead before entering judgment for the defendant on
The facts of this case are described in my prior order. In a nutshell, the plaintiff
alleged that defendant Real Time Resolutions, Inc., sent her a collection letter that
violates the Fair Debt Collection Practices Act because the “validation notice” required
by 15 U.S.C. § 1692g(a) was printed on the second page of the letter. The plaintiff’s
legal theory was that a debt collector’s printing the validation notice anywhere other
than the front of the first page of a collection letter violates the FDCPA unless the debt
collector also includes a notice on the front of the first page alerting the consumer that
the validation notice appears elsewhere. Here, Real Time’s letter did contain a notice
directing the consumer to the back of the letter’s first page, where various consumerprotection notices were located. But the validation notice was not printed on the back of
the first page. Instead, it was printed on the front of a second sheet of paper, i.e., on
the third page of the letter’s text. The plaintiff argued that this caused the validation
notice to be “overshadowed” in violation of § 1692g(b).
I found that, as a matter of law, Real Time did not overshadow the validation
notice by printing it on the front of the second sheet of paper without also printing a
notice on the front of the first sheet directing the plaintiff to the validation notice. Having
rejected the plaintiff’s legal theory, I granted Real Time’s motion to dismiss. Moreover,
because I dismissed the complaint based on the failure of the plaintiff’s legal theory
rather than on her failure to adequately plead the facts necessary to support that legal
theory, I did not afford the plaintiff an opportunity to amend. Essentially, I determined
that granting leave to amend would have been futile because the defect in the plaintiff’s
claim resided in her legal theory rather than in the complaint’s factual allegations. See
Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that “futility of amendment” is a
reason to deny leave to amend).
The plaintiff now contends that I erred by not granting her at least one
opportunity to file an amended complaint. The plaintiff asserts that, had I granted her
leave to amend, she would have filed an amended complaint that included “additional
claims against Real Time based upon the same letter.”
(Br. in Supp. of Mot. for
Reconsideration at 16, ECF No. 19.) These additional claims would have asserted that
other parts of the letter were confusing or inaccurate. Specifically, the plaintiff would
have alleged that Real Time’s statement that it would not charge the plaintiff “any
interest or fees” was deceptive and confusing, and also that the letter misstated the
principal and interest due on the account. (Id. at 16–18.)
Importantly, the plaintiff is not seeking leave to amend to cure any pleading
deficiencies relating to her original legal theory. Instead, she seeks leave to amend to
assert new claims against Real Time based on parts of the letter that she did not
challenge either in her original complaint or in her brief in opposition to the defendant’s
motion to dismiss.1 She also seeks to change her original legal theory. Her original
theory was that printing the validation notice on the second sheet of paper without
properly directing the consumer to that notice “violate[d] the FDCPA as a matter of law
irrespective of the other information in Real Time’s letter.” (Rely Br. in Supp. of Mot. for
Reconsideration at 10, ECF No. 21.) Now, however, the plaintiff intends to argue that
this “other information in Real Time’s letter,” when combined with the location of the
validation notice, results in overshadowing.
In support of her argument that I should have granted her leave to amend, the
plaintiff cites cases from the Seventh Circuit holding that when a district court grants a
motion to dismiss under Rule 12(b)(6), it should almost always grant the plaintiff at least
one opportunity to amend her complaint. See Runnion ex rel. Runnion v. Girl Scouts of
Greater Chicago, 786 F.3d 510, 518–23 (7th Cir. 2015); Bausch v. Stryker Corp., 630
F.3d 546, 561–62 (7th Cir. 2010); Foster v. DeLuca, 545 F.3d 582, 583–85 (7th Cir.
I mention the plaintiff’s brief in opposition to the motion to dismiss because a complaint
does not have to identify legal theories. See, e.g., ACF 2006 Corp. v. Mark C.
Ladendorf, Attorney at Law, P.C., 826 F.3d 976, 981 (7th Cir. 2016). However, once
the defendant moves to dismiss for failure to state a claim, the pleader must identify her
legal theories. See, e.g., Stransky v. Cummins Engine Co., Inc., 51 F.3d 1329, 1335
(7th Cir. 1995).
2008). As explained in these cases, the purpose of granting leave to amend is to allow
the plaintiff a chance to fix curable pleading deficiencies, such as failing to allege
enough factual matter to state a plausible claim for relief. See Runnion, 786 F.3d at 518
(explaining that leave to amend should be granted so that the plaintiff would have an
“opportunity to try to correct the deficiencies the court had identified”); Bausch, 630 F.3d
at 562 (stating that leave to amend should ordinarily be granted at least once “when
there is a potentially curable problem with the complaint”).
In these situations, the
plaintiff may be able to allege the factual matter that the district court found lacking, and
so the court’s granting leave to amend allows the case to be decided on the merits
rather than on a technical pleading defect.
See Runnion, 786 F.3d at 520 (citing
authority stating that the federal rules favor “deciding cases on the basis of the
substantive rights involved rather than on technicalities”).
In the present case, however, I did not dismiss the complaint based on a
technical pleading defect. Instead, I dismissed the complaint because the plaintiff’s
legal theory failed. Because the plaintiff’s legal theory failed, there was no amendment
that could save her claim, and thus I determined that granting leave to amend would be
futile. Instead, I expected that, if the plaintiff disagreed with my conclusion that her legal
theory failed, she would file an appeal. Thus, I entered judgment on the merits. But
instead of filing an appeal, the plaintiff filed her motion to amend, which seeks to expand
this case to include claims and legal theories that she did not originally assert. Cases
such as Runnion and the others that the plaintiff cites do not suggest that when a court
dismisses a complaint based on a failed legal theory, it should automatically grant the
plaintiff leave to amend in case she might want to assert new claims or different legal
theories. Cf. Bausch, 630 F.3d at 562 (citing fact that proposed amended complaint did
not assert a “new theory of relief” as a reason the district court should have allowed the
Rather, as noted, these cases focus on granting leave to amend to
enable the plaintiff to cure technical pleading defects in the dismissed claims.
In any event, cases such as Runnion do not hold that a court granting a motion to
dismiss must always grant leave to amend. Instead, those cases hold that the court
should apply the ordinary leave-to-amend standard of Rule 15(a)(2). See Runnion, 786
F.3d at 522. Under that standard, one well-established ground for denying leave to
amend is undue delay, see Foman, 371 U.S. at 182, and I find that this ground applies
here. The plaintiff made no request to amend her complaint in response to Real Time’s
motion to dismiss. She did not, in her brief in opposition to the motion, inform the court
that she intended to assert new claims or that she intended to argue that other
deficiencies in Real Time’s letter supported her original overshadowing legal theory.
Rather, she requested leave to amend to assert her new claims for the first time in her
motion for reconsideration. The plaintiff offers no reason for waiting until then to assert
these claims. She does not argue that she did not discover either the factual or legal
basis for these claims until after the court decided the motion to dismiss. Indeed, her
new claims and theories are based on the same letter that she attached to her original
complaint and on the same legal authority as her original claim. Thus, the plaintiff has
no excuse for failing to seek leave to amend until now.
Moreover, the plaintiff’s undue delay has resulted in prejudice to both the
defendant and the court. See George v. Kraft Foods Global, Inc., 641 F.3d 786, 789–91
(7th Cir.2011) (noting that delay alone is not a reason to deny leave to amend; prejudice
Had the plaintiff mentioned her desire to bring new claims and legal
theories in response to the motion to dismiss, the court could have granted her leave to
amend at that time and denied the original motion to dismiss as moot.2 This would have
saved the defendant the expense of filing a reply brief in support of its original motion,
and it would have allowed the court to save the judicial resources it expended in
deciding the original motion to dismiss. Although the defendant would likely have filed a
new motion to dismiss directed at the amended complaint, the parties and the court
could have more efficiently addressed the sufficiency of all of the plaintiff’s claims and
theories in a single round of briefing and opinion-writing. Moreover, the plaintiff’s new,
more comprehensive claims likely would have superseded her original claim, making
briefing and a decision on that stand-alone claim unnecessary. Allowing the plaintiff to
present her claims in piecemeal fashion would result in the court’s turning its attention to
the case twice over several months, with the attendant costs of having to relearn the
basic facts and background legal principles, and having to write two opinions relating to
a motion to dismiss rather than one. See Messner v. Calderone, 407 F. App’x 972, 974
(7th Cir. 2011) (finding no error in district court’s refusing leave to amend to assert new
claims where “[t]he new and old claims arose from the same events” and the plaintiff
“could have pressed both theories together”); accord Bethany Pharmacal Co., Inc. v.
QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001).
If the plaintiff had a good reason for presenting her claims serially—such as not
discovering the factual or legal basis of her new claims until recently—then perhaps the
I also note that the plaintiff had a right to amend as a matter of course within 21 days
of service of the defendant’s motion to dismiss. See Fed. R. Civ. P. 15(a)(1)(B). Thus,
the plaintiff could have added her new claims to the case without seeking leave of court.
forms of prejudice I have just mentioned would not be sufficient to warrant the denial of
leave to amend. But, as discussed, the plaintiff has offered no reason at all. As far as
the record reveals, the plaintiff may have made a strategic decision to omit her “new”
claims from the original complaint and now regrets that decision.
See Fannon v.
Guidant Corp., 583 F.3d 995, 1003 (7th Cir. 2009) (noting that party’s apparently
making a strategic decision to wait until after the court rules on a motion to dismiss to
introduce new factual allegations is grounds for denying leave to amend). Accordingly, I
find that the plaintiff’s request for leave to amend must be denied because of undue
For the reasons states, IT IS ORDERED that the plaintiff’s motion to alter
judgment (ECF No. 18) is DENIED.
Dated at Milwaukee, Wisconsin, this 9th day of April, 2018.
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