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Cox v. Richland Holdings, Inc.

United States District Court, D. Nevada

April 30, 2018

LINDA COX, Plaintiff,
v.
RICHLAND HOLDINGS, INC. d/b/a ACCOUNT CORP OF SOUTHERN NEVADA; PARKER AND EDWARDS, INC.; and LANGSDALE LAW FIRM, P.C. Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE, DENYING MOTION FOR SUMMARY JUDGMENT AS MOOT, AND DENYING MOTION FOR LEAVE TO FILE LATE RESPONSE AS MOOT (ECF NOS. 71, 79, 95, 97)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Plaintiff Linda Cox sues defendants Richland Holdings, Inc. d/b/a Account Corp of Southern Nevada (AcctCorp), Parker and Edwards, Inc. (P&E), and Langsdale Law Firm, P.C. for alleged actions arising from the attempted collection of a debt. Cox originally alleged that all defendants are liable for violations of the Fair Debt Collection Practices Act (FDCPA), the Nevada Deceptive Trade Practices Act (NDTPA), and for abuse of process under Nevada law.

         I previously granted Langsdale's motion to dismiss the claims against it and gave Cox leave to amend her complaint if she could add facts sufficient to state those claims. Cox filed an amended complaint that did not reassert any of her previous claims against AcctCorp or P&E and added factual allegations and claims against Langsdale and AcctCorp that were not included in her original complaint. All defendants move to strike Cox's amended complaint. AcctCorp and P&E's motion for summary judgment based on Cox's original complaint and Cox's motion to file a late response to that motion are still pending.

         I grant the motions to strike the first amended complaint and allow Cox one more opportunity to file an amended complaint consistent with this and my previous order. I also deny AcctCorp and P&E's motion for summary judgment and Cox's motion for leave to file a later response as moot.

         I. BACKGROUND

         Cox's original complaint alleged that Langsdale violated the FDCPA by failing to serve her with a substitution of attorney notice when AcctCorp retained it to continue pursuing litigation against her, failing to provide a validation of debt letter, and dismissing the state collection action against her. She also alleged that Langsdale engaged in deceptive trade practices in violation of the NDTPA and committed abuse of process by using the state action to pursue collection of unlawful fees and interest. Cox alleged that AcctCorp and P&E failed to provide Cox with validation of debt letters and similarly engaged in deceptive trade practices and abuse of process. Lastly, Cox alleged that AcctCorp added unlawful fees to her debt, misrepresented the amount of the debt and the due date of her response to the state action, and used obscene, profane, and abusive language in an attempt to coerce Cox to pay the debt.[1]

         I granted Langsdale's motion for judgment on the pleadings because Cox failed to sufficiently state any claims against it. Specifically, I found Cox did not adequately allege that (1) Langsdale's failure to serve the substitution of attorney notice caused her any harm; (2) any initial communications occurred between her and Langsdale that would trigger the FDCPA's validation of debt letter requirement; and (3) Langsdale had no legal right to institute or did not intend to litigate the state collection action. I also found that Cox did not allege any facts to support an NDTPA violation against Langsdale, or to demonstrate that Langsdale acted with an improper purpose when pursuing the state action to support her abuse of process claim. I granted Cox leave to amend if she could allege facts to cure the deficiencies I identified.[2]

         Cox timely filed an amended complaint. However, that complaint drops AcctCorp and P&E from the caption and does not re-allege most of the claims originally brought against them. Instead, Cox's amended complaint adds a variety of new claims against Langsdale and AcctCorp that were not envisioned in my order granting Cox limited leave to amend. Cox now accuses AcctCorp of unlawfully using Langsdale's credentials to file state court documents, forging court documents, and engaging in the unauthorized practice of law.

         Cox also adds facts supporting new FDCPA claims against Langsdale for misrepresentation, obscene language to coerce collection of the debt, failure to independently review the validity of the debts before engaging in collection efforts, threatening to collect the full amount of unlawfully inflated debt, and facilitating AcctCorp's unlawful use of credentials, forgery, and unauthorized practice of law. Cox does not reassert the claims against Langsdale accusing it of failing to serve the substitution of attorney notice and does not include facts relating to Langsdale's dismissal of the state action. P&E is barely mentioned, and all claims alleging a violation of NDPTA against any of the defendants have been removed.[3] The defendants move to strike Cox's amended complaint because it far exceeds the scope of my order granting limited leave to amend the claims against Langsdale.[4]

         II. DISCUSSION

         Under Federal Rule of Civil Procedure 15(a)(1), a party may amend her pleading only once as a matter of course within 21 days after serving it or after a responsive pleading or Rule 12(b), (e), or (f) motion is served. If that time-period lapses, a party may amend its pleading only with the opposing party's written consent or with the court's leave.[5] My dismissal order granted Cox leave to amend to address only specified deficiencies. It did not give Cox the opportunity to add a plethora of new facts and claims never mentioned before.[6] The deadline to amend pleadings in this case expired on April 10, 2017, and discovery closed on July 11, 2017.[7] Cox is thus seeking to amend the scheduling order.

         Where a party seeks to amend a pleading after expiration of the scheduling order's deadline for amending, the moving party first must satisfy the stringent “good cause” standard under Federal Rule of Civil Procedure 16(b)(4).[8] The analysis focuses on the moving party's diligence.[9] I may modify the scheduling order if its deadlines “‘cannot reasonably be met despite the diligence of the party seeking the extension.'”[10] The good cause standard typically will not be met where the party seeking to modify the scheduling order has been aware of the facts and theories supporting amendment since the inception of the action.[11]

         Although Rule 16 does not mention a showing of prejudice, I may consider whether prejudice would result to the party opposing amendment.[12] Prejudice has been found where the plaintiff moved to amend late in the proceedings, thereby requiring the defendant to go “through the time and expense of continued litigation on a new theory, with the possibility of additional discovery.”[13] Whether to modify the scheduling order's amendment deadline lies within my discretion.[14]

         If the moving party is able to satisfy the good cause standard under Rule 16, then I examine whether the amendment is proper under Rule 15(a).[15] Under Rule 15(a)(2), I “should freely give leave when justice so requires.”[16] I consider five factors to assess whether to grant leave to amend under Rule 15(a): (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether ...


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