United States District Court, D. New Jersey
GEORGE E. HEEREMA, Plaintiff,
FORSTER, GARBUS & GARBUS, et al., Defendants.
Michael A. Hammer UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
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.
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)).
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.
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).
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”).
“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
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. ...