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Heerema v. Forster

United States District Court, D. New Jersey

April 17, 2018

FORSTER, GARBUS & GARBUS, et al., Defendants.



         I. Introduction

         This matter comes before the Court on Plaintiff George E. Heerema's motion to amend his Complaint to include additional facts in support of his claims brought pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”), and to add the three general partners of Forster, Garbus & Garbus (“FG&G”) as Defendants, D.E. 25. The Court has considered the motion, opposition and applicable law. On January 18, 2018, the Court heard oral argument on the motion. For the reasons set forth herein, Plaintiff's motion to amend the Complaint is granted in part and denied in part.

         II. Background

         On October 1, 2015, Plaintiff filed a Class Action Complaint against Defendant FG&G, a collection law firm, and John Does 1-10. Complaint, Oct. 1, 2015, D.E. 1. Defendant was assigned to Plaintiff's account for the purpose of collecting a past-due debt that Plaintiff allegedly owed to Discover Bank. Id. at ¶¶ 13-18. In its attempt to collect the debt, Defendant mailed a collection letter to Plaintiff on or about October 2, 2014. Id. at ¶ 20. The initial Complaint alleges that Defendant violated the FDCPA by sending “debt collection letters to Plaintiff and other New Jersey consumers on law firm letterhead without an attorney first exercising professional judgment by independently evaluating collection demands and determining that the proceedings to enforce collection are warranted, ” in violation of 15 U.S.C. §1692e, 15 U.S.C. §1692 e(2), 15 U.S.C. §1692 e(3) and 15 U.S.C. §1692f. Id. at ¶ 2. On November 9, 2015, Defendant filed its Answer to the Complaint. Answer, Nov. 9, 2015, D.E. 6.

         On June 9, 2016, the Court entered a Scheduling Order which set the close of all fact discovery for April 8, 2017, and January 6, 2017 as the date by which the parties were required to move to add new parties or amend pleadings. Pretrial Scheduling Order, June 9, 2016, D.E. 12, at ¶¶ 3, 13. By order entered by on October 17, 2016, the Court extended the deadline by which to file a motion to amend or add new parties to March 31, 2017. Text Order, Oct. 17, 2016, D.E. 14. On March 6, 2017, the Court entered an Amended Scheduling Order, extending the close of fact discovery to July 8, 2017. Amended Scheduling Order, March 6, 2017, D.E. 20, ¶ 1. On June 22, 2017, Plaintiff deposed Glenn Garbus, one of Defendant's partners, both in his individual capacity and as the Rule 30(b)(6) deponent of FG& G. Memorandum in Opposition to Plaintiff's Motion to Amend, D.E. 29, at 5.

         On September 22, 2017, Plaintiff moved to amend his Complaint, alleging that additional facts were uncovered during Glenn Garbus's deposition that necessitate Plaintiff's proposed amendment to the Complaint. Plaintiff's Brief in Support of Motion to Amend, D.E. 25-2, at 2. Specifically, Plaintiff maintains that he should be permitted to add factual allegations to the FDCPA claim, to include, in the alternative, that Defendant's October 2, 2014 letter to Plaintiff was false and misleading because it was confusing regarding whether and to what extent an attorney had reviewed Plaintiff's file and the letter sent to Plaintiff. Id. at 6. Plaintiff asserts that the letter was particularly misleading because one month after the letter was sent to Plaintiff, the attorney who reviewed Plaintiff's file and caused the letter to be sent to Plaintiff filed a lawsuit against Plaintiff seeking to collect the alleged debt. Patel Declaration, ¶ 7. Plaintiff also seeks to name individual Defendants, Glenn Garbus, Mark Garbus and Ronald Forster, “given that Mr. Garbus testified that the firm is a general partnership and the three partners drafted the letter and the confusing and contradictory language of the letter at issue.” Id. at 9-10.

         Defendant opposes the amendment insofar as it would name Forster and the Garbuses as individual Defendants. Defendant argues that the three individuals will be prejudiced by the amendment at this late date, and that Plaintiff has failed to demonstrate good cause for amendment of the Complaint six months after the Court's deadline for doing so. Memorandum in Opposition to Plaintiff's Motion to Amend, D.E. 29, at 7-9. Defendant also argues that the amendments fail to plead any factual allegations specific to Forster or Mark Garbus. Id. While Defendant does not explicitly consent to amending the Complaint to add additional facts in support of Plaintiff's claims, its objection is not particularly strong either. Instead, Defendant states “insofar as such an amendment would require only limited additional discovery, [it] believes the case law weighs against it successfully opposing the amendment in this regard.” Id. at 2. On January 18, 2018, the Court held oral argument on this motion.

         III. Analysis

         The threshold issue in resolving a motion to amend is the determination of whether the motion is governed by Rule 15 or Rule 16 of the Federal Rules of Civil Procedure.” Karlo v. Pittsburgh Glass Works, LLC, No. 10-1283, 2011 WL 5170445, at *2 (W.D. Pa. Oct. 31, 2011). Rule 15 states, in pertinent part, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Rule 16, on the other hand, requires a party to demonstrate ‘good cause' prior to the Court amending its scheduling order.” Karlo, 2011 WL 5170445, at *2 (citing Fed.R.Civ.P. 16(b)(4)).

         a. Rule 16(b)(4)

         Given that Plaintiff's motion was filed after the March 31, 2017 deadline for the filing of motions to amend the pleadings set forth in the Court's October 17, 2016 Text Order, D.E. 14, the first question before the Court is whether good cause exists to adjust the deadline to permit Plaintiff to now file the instant motion.

         Rule 16 of the Federal Rules of Civil Procedure authorizes courts to enter schedules of proceedings. The pretrial scheduling order allows a court to take “judicial control over a case and to schedule dates for completion by the parties of the principal pretrial steps.” Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463, 469 (D.N.J. 1990) (quoting Fed.R.Civ.P. 16 advisory committee's note (1983 Amendment)); see also Newton v. A.C. & S., Inc., 918 F.2d 1121, 1126 (3d Cir. 1990) (stating the purpose of Rule 16 is to provide for judicial control over cases, streamline proceedings, maximize efficiency of the court system, and actively manage the timetable of case preparation to expedite speedy and efficient disposition of cases).

         A scheduling order must, among other things, “limit the time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed.R.Civ.P. 16(b)(3)(A). The requirement of a deadline for amending pleadings in the pretrial scheduling order “assures that at some point . . . the pleadings will be fixed.” Fed.R.Civ.P. 16(b) advisory committee's note (1983 Amendment); see also Harrison, 133 F.R.D. at 469 (“The careful scheme of reasonable framing and enforcement of scheduling orders for case management would thus be nullified if a party could inject amended pleadings upon a showing of less than good cause after scheduling deadlines have expired.”). The burden is on the moving party to show “good cause” for its failure to comply with the applicable scheduling order, and accordingly, for the Court to allow its proposed amended pleading. Prince v. Aiellos, No. 09-5429, 2012 WL 1883812, at *6 (D.N.J. May 22, 2012) (quoting Graham v. Progressive Direct Ins. Co., 271 F.R.D. 112, 118 (W.D. Pa. 2010)); see also Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010) (affirming the trial court's holding that “Rule 16(b)(4) focuses on the moving party's burden to show due diligence”).

         Whether “good cause” exists under Rule 16 hinges to a large extent on the diligence, or lack thereof, of the moving party. Globespan Virata, Inc. v. Texas Instruments, Inc., No. 03-2854, 2005 WL 1638136, at *3 (D.N.J. July 12, 2005) (quoting Rent-A-Ctr. v. Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. Apr. 9, 2003)). Put succinctly, “[a]bsent diligence, there is no ‘good cause.'” Chancellor v. Pottsgrove Sch. Dist., 501 F.Supp.2d 695, 702 (E.D. Pa. Aug. 8, 2007); see also Fed. R. Civ. P. 16(b), advisory committee's note (1983 Amendment) (“[T]he court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension.”).

         When examining a party's diligence and whether “good cause” exists for granting an otherwise untimely motion to amend pleadings, courts typically ascertain whether the movant possessed, or through the exercise of reasonable diligence should have possessed, the knowledge necessary to file the motion to amend before the deadline expired. See Stallings ex rel. Estate of Stallings v. IBM Corp., No. 08-3121, 2009 WL 2905471, at *16 (D.N.J. Sept. 8, 2009) (denying plaintiffs' motion to amend because they “had sufficient information to state the proposed claims well in advance of the Scheduling Order deadline”); Kennedy v. City of Newark, No. 10-1405, 2011 WL 2669601, at *2 (D.N.J. July 7, 2011) (“The most common basis for finding a lack of good cause is the party's knowledge of the potential claim before the deadline to amend has passed.”). If a movant had the knowledge necessary to file a motion to amend prior to the expiration of the Court's deadline set forth in the scheduling order, and if the movant can provide no satisfactory explanation for the delay, the Court may, in its discretion, deny the motion. ...

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