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Demmick v. Cellco Partnership

March 18, 2008

RALPH DEMMICK PLAINTIFF(S),
v.
CELLCO PARTNERSHIP, ET AL., DEFENDANT(S).



The opinion of the court was delivered by: Claire C. Cecchi United States Magistrate Judge

OPINION AND ORDER

This matter comes before the Court by way of Plaintiffs' motion to amend the Complaint (Docket Entry No. 41). Defendant opposed the motion. Pursuant to Federal Rule of Civil Procedure 78, no oral argument was heard. For the reasons expressed below, Plaintiffs' motion is GRANTED.

FACTUAL BACKGROUND

On May 11, 2006, Plaintiffs Ralph Demmick and Donald Barth filed a putative class action Complaint asserting two claims related to the billing practices of Defendant Cellco Partnership (doing business as Verizon Wireless).*fn1 The first claim asserted in the Complaint alleges that Plaintiffs were billed at an excessive rate for calls made after the minutes contracted for under their respective calling plans were depleted. Plaintiffs also state that Defendant failed to adequately disclose the methodology it utilized to calculate these after-allowance minutes to Plaintiffs and its other customers. The second claim, asserted by Plaintiff Barth only, alleged that Defendant improperly billed Barth for calls made between two Verizon Wireless cellular telephones, known as In-Network and/or In-Family calls (the "Barth Claim"). However, on March 13, 2007, the Hon. Jose L. Linares, U.S.D.J., dismissed the Barth Claim as moot, finding that Defendant undertook remedial action prior to the commencement of the instant suit.

Plaintiffs now move to amend the Complaint to: (1) remove the count pertaining to the now-moot Barth Claim; and (2) to assert an additional claim on behalf of Plaintiff Demmick alleging that he was erroneously charged for In-Network and/or In-Family calls. The new claim Plaintiffs seek to add to the Complaint involves a similar legal theory asserted in the dismissed Barth Claim but is supported by different facts and circumstances.

DISCUSSION

I. Applicable Legal Standard - Federal Rule of Civil Procedure 15(a)

Federal Rule of Civil Procedure 15(a) governs Plaintiffs' motion to amend the Complaint in this matter. Rule 15(a) provides in pertinent part:

[A] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

When deciding whether to grant a motion in support of leave to amend pursuant to Rule 15(a), "[a] general presumption exists in favor of allowing a party to amend its pleadings." Del Sontro v. Cendant Corp., Inc., 223 F.Supp.2d 563, 576 (D.N.J. 2002). Leave to amend may be denied, however, if the Court finds: (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice to the non-moving party; or (4) futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (citations omitted). For the reasons discussed below, the Court rejects Defendant's arguments and finds that Plaintiffs should be permitted to amend their Complaint under Federal Rule 15(a).

II. Undue Delay

"The passage of time, without more, does not require that a motion to amend a complaint be denied; however, at some point, the delay will become undue, placing an unwarranted burden on the court, or will become prejudicial, placing an unfair burden on the opposing party." Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984). Indeed, there is "no presumptive period in which a motion for leave to amend is deemed 'timely' or in which delay becomes 'undue'." Arthur v. Maersk, Inc., 434 F.3d 196, 205 (3d Cir. 2006).

Here, although this case has been pending for some time, there has been no undue delay in Plaintiffs' moving to amend. Although Plaintiff Demmick first complained that he was overcharged by Verizon for In Network calls in 2004, Demmick asserts that he was not able to confirm the circumstances surrounding the billing errors until a few months before the filing of this motion. Plaintiffs then attempted to obtain Defendant's consent to the filing of an amended complaint and, when informed that Defendant ...


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