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Carroll v. McColl

May 11, 2010

MIRIAM G. CARROLL, PLAINTIFF,
v.
WILSON MCCOLL & RASMUSSEN, ATTORNEYS AT LAW; HAWLEY, TROXELL, ENNIS, & HAWLEY, LLP., DEFENDANTS.



The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

Currently pending before the Court is Plaintiff Miriam Carroll's Motion to Amend (Docket No. 34). After thoroughly reviewing the briefing and the record,*fn1 the Court finds that the Motion to Amend will be granted in part and denied in part as more fully explained below.

I. Background

On October 6, 2005, Citibank filed an action in Idaho state court (CV-2005-153) against Plaintiff Miriam Carroll ("Carroll") to recover credit card debt. The court granted Citibank's motion for summary judgment, finding that Citibank had standing to bring the action. Carroll appealed the decision. On November 25, 2009, the Idaho Supreme Court affirmed the state court's decision. While the appeal was pending, Carroll filed this lawsuit on January 15, 2008 (Docket No. 1), against the attorneys who represented Citibank in the state court lawsuit, alleging they violated the Fair Debt Collection Practices Act ("FDCPA") and the Idaho Consumer Protection Act ("ICPA"). The parties stipulated to dismiss Defendant Wilson, McCall & Rasmussen from this litigation on November 6, 2008. (Docket No. 25.)

II. Discussion

A. Motion to Amend

On December 7, 2009, Plaintiff filed a motion to amend her complaint. (Docket No. 34.) Specifically, the proposed amended complaint includes allegations that Defendant Hawley Troxell, Ennis & Hawley, LLP ("HTEH") violated the FDCPA by sending letters to Plaintiff dated March 2, 2007, March 30, 2007, January 7, 2008, and March 31, 2008, which did not state specifically that they were from a debt collector. The proposed amended complaint further alleges that HTEH violated the ICPA by making certain representations in state court briefs on January 4, 2007, January 18, 2007, February 6, 2007, May 25, 2007, July 5, 2007, July 17, 2007, November 20, 2007, December 19, 2007, and January 16, 2008. Further, Plaintiff is seeking to add Sheila Schwager as a Defendant to the FDCPA and ICPA claims and Loren Messerly as a Defendant to the ICPA claim. Both Ms. Schwager and Mr. Messerly were HTEH attorneys who represented Citibank and worked on the state court litigation. (Opposition p. 4, Docket No. 36.)

Defendants do not oppose an amended complaint that names only HTEH as a Defendant and which includes only the more specific FDCPA claims proposed by Plaintiff based on the March 2, 2007, March 30, 2007, January 7, 2008 and March 31, 2008 letters. (Opposition p. 5, Docket No. 36.) Defendants object to the addition of ICPA claims against HTEH and the inclusion of Ms. Schwager and Mr. Messerly as Defendants to both FDCPA and ICPA claims. (Opposition, Docket No. 36.)

Fed. R. Civ. P. 15(a) provides that amendments to pleadings should be liberally granted in the interests of justice. The rule states: "[A] party may amend the party's pleadings only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). However, the right to amend is not absolute. When determining whether amendments should be granted, the Court should consider "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of amendment, futility of amendment, etc...." Forman v. Davis, 371 U.S. 178, 182 (1962). Prejudice to the opposing party is the most important factor for consideration. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) citing Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 330-31 (1971).

1. FDCPA claims against Sheila Schwager

Defendant argues that the addition of Ms. Schwager as a Defendant to the FDCPA claims is inappropriate, because the statute of limitations has run and the amendment would not relate back to the time of filing under Fed. R.Civ. P. 15(c).

The statute of limitations under the FDCPA is one year. 15 U.S.C. § 1692k(d). Thus, the addition of Ms. Schwager as a Defendant would implicate a statute of limitations defense, because the last of the alleged FDCPA violations occurred on March 31, 2008, well over one year ago. Therefore, HTEH is correct that inclusion of Ms. Schwager as a Defendant to the FDCPA claim is time barred, unless the relation back provisions of Fed. R. Civ. P. 15(c) apply.

Fed. R. Civ. P. 15(c) provides that an amendment will relate back to the date of the pleading when:

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be ...


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