United States District Court, D. Kansas
For Sandra Braden, Plaintiff: Alan J. Stecklein, Michael H. Rapp, LEAD ATTORNEYS, Consumer Legal Clinic LLC, Kansas City, KS.
For Morgan & Associates PC, Defendant: David A. Cheek, LEAD ATTORNEY, PRO HAC VICE, Cheek & Falcone, PLLC, Oklahoma City, OK; James L. Nelson, Overland Park, KS.
James P. O'Hara, United States Magistrate Judge.
This lawsuit arises from the debt collection practices of defendant Morgan & Associates PC, in attempting to collect a debt owed by plaintiff Sandra Braden to Citibank N.A. Plaintiff asserts claims under the Fair Debt Collection Practices Act (" FDCPA"), and the Kansas Consumer Protection Act (" KCPA"). The matter is presently before the undersigned U.S. Magistrate Judge, James P. O'Hara, on plaintiff's motion to amend her complaint (ECF doc. 19). Specifically, plaintiff seeks to add a claim for a separate and alternative violation of the FDCPA and to supplement her KCPA claim with information she recently learned from the motion for summary judgment defendant filed on October 1, 2014. Defendant opposes plaintiff's motion, arguing that plaintiff's proposed amendments are unduly delayed, prejudicial, and futile. For the reasons discussed below, plaintiff's motion is granted.
Defendant is a law firm that specializes in collecting unpaid consumer debt. Specifically, defendant provides debt collection and legal services for Citibank, N.A. as an independent contractor. In December 2013, Citibank, N.A. engaged defendant to collect a debt owed by plaintiff. On December 23, 2013, defendant sent a letter (the " Letter") directly to plaintiff notifying her that the account had been referred to defendant for collection and provided her with the creditor's name, the creditor account number, and the amount owed. According to defendant, it had no knowledge that plaintiff was represented by counsel with respect to the debt when it sent the Letter. However, plaintiff had retained counsel in September 2013 to represent her in litigation initiated by Citibank, N.A. regarding the same account, which was pending in the District Court of Johnson County, Kansas when defendant sent the Letter.
Plaintiff filed suit against defendant on May 1, 2014 in the District Court of Wyandotte County, alleging two claims for violations of the FDCPA and the KCPA. The FDCPA establishes civil liability for debt collectors who attempt to collect amounts not permitted by law. The KCPA was enacted " to protect consumers from suppliers who commit deceptive and unconscionable practices."  Plaintiff alleges defendant violated the FDCPA and the KCPA by communicating with her in connection with the collection of the debt while she was represented by counsel with regard to such debt. On June 6, 2014, defendant removed the Wyandotte County case to the United States District Court for the District of Kansas. The undersigned entered a scheduling order on August 25, 2014, setting a January 30, 2015 discovery deadline and an October 20, 2014 deadline to file motions to amend. The deadline for all other potentially dispositive motions is not until March 3, 2015.
On October 1, 2014, defendant filed a motion for summary judgment, asserting that defendant had no actual knowledge that plaintiff was represented by an attorney when it sent the Letter directly to her. Defendant argued that because there must be actual knowledge of the representation for liability to attach, the presiding U.S. District Judge, Eric F. Melgren, should grant its motion for summary judgment. In support of its motion, defendant attached the affidavit of Bobby Irby, the supervising litigation attorney in defendant's Oklahoma office. Plaintiff asserts that she learned information for the first time from this affidavit that forms the basis for her additional claim and refined allegations in the proposed amended complaint.
In her proposed amended complaint, plaintiff seeks to add an additional claim for a separate and alternative violation of the FDCPA and to supplement her KCPA claim with allegations of " misrepresentations regarding both an attorney's involvement and assessment of the account."  Specifically, plaintiff asserts that she did not know that " James Nelson, the Kansas attorney who purportedly reviewed and signed the letter, had not signed the letter and that no Kansas attorney had reviewed the file."  Rather, Bobby Irby signed the Letter for Mr. Nelson.
Under Fed.R.Civ.P. 15(a) (2), once a responsive pleading has been filed and twenty-one days have passed, " a party may amend its pleading only with the opposing party's written consent or the court's leave." The scheduling order set a deadline of October 20, 2014, for amending the pleadings. Because plaintiff timely filed the instant motion by October 20, 2014, the court will only evaluate the proposed amendment under Rule 15.
Rule 15 dictates that the court " should freely give leave when justice so requires."  Although the granting of a motion to amend is within the court's discretion, the Supreme Court has indicated that Rule 15's directive to freely give leave is a " mandate ... to be headed."  " A district court should refuse leave to amend 'only [upon] a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.'"  Defendant argues that plaintiff's proposed amendments are unduly delayed, prejudicial, and futile.
Undue delay. When determining whether a party has " unduly delayed" in seeking amendment, the " [e]mphasis is on the adjective."  " Lateness does not of itself justify the denial of an amendment."  Rather, the Tenth Circuit has directed that the court's focus should be on " the reasons for the delay."  The court may refuse leave to amend " when the party filing the ...