United States District Court, D. New Jersey
TERESA M. SHEDLER, on behalf of herself and all other similarly situated, Plaintiff,
RICHARD SOKOLOFF d/b/a RICHARD SOKOLOFF ATTORNEY AT LAW, Defendant.
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff Theresa M.
Shedler's motion for leave to file an Amended Complaint
[D.E. 30] to add Joseph Packard, Esq. (“Packard”)
as a defendant. Defendant, Richard Sokoloff d/b/a Richard
Sokoloff Attorney at Law (“Sokoloff”), opposes
Plaintiff's motion. [D.E. 32]. The Court has reviewed the
motion, opposition, and applicable law. This Court has
considered this matter without oral argument pursuant to
Federal Rule of Civil Procedure 78. For the reasons set forth
below the Court will deny leave to add Packard as a
litigation arises out of a debt incurred by Plaintiff from
Radiology Associates of Ridgewood (“Radiology
Associates”). See generally, Complaint, D.E.
1. On or about February 10, 2014, Radiology Associates
administered an MRI to Plaintiff for which they charged $1,
354.00. Id. at ¶ 18. After Plaintiff's
health insurance paid its portion, Plaintiff was left with a
balance of $585.56. Id. at ¶ 19. Sometime prior
to February 10, 2015, the balance became past due and
Radiology Associates referred the balance to Sokoloff for
collection. Id. at ¶¶ 21-22. Thereafter,
Plaintiff received a letter from Sokoloff, dated February 10,
2015, which requested that a payment in the amount of $731.95
be remitted to Sokoloff to satisfy Plaintiff's
outstanding obligation with Radiology Associates.
Id. at ¶¶ 23-25. The letter listed the
names Richard Sokoloff, Esq. and Joseph Packard, Esq., but is
signed only by Sokoloff. See Complaint, D.E. 1, Exh.
B. According to Plaintiff, the letter demanded $146.39 more
than the amount originally requested by Radiology Associates
and did not provide an explanation as to why the amount
demanded was increased. Id. at ¶ 29. Plaintiff
now alleges that she does not owe the extra $146.39, or if
she does, “it was an unreasonable collection fee, cost,
or interest.” Id. at ¶ 30. Plaintiff
brought this action against Sokoloff, alleging multiple
violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
now seeks leave to file an Amended Complaint to add Packard
as a defendant in the present action. See generally,
Proposed Amended Complaint, D.E. 30-2. Plaintiff seeks to
assert her existing FDCPA claims against Packard as an
additional defendant. Specifically, Plaintiff alleges that
Packard is also subject to liability under the FDCPA because
his name is alongside Sokoloff's on the February 10, 2015
collection letter. Id.
first issue the Court must determine is whether Federal Rule
of Civil Procedure 15 or Rule 16 governs the motion to amend.
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)). In this case,
the Court issued a Scheduling Order on August 30, 2016 [D.E.
8], which gave the parties until March 20, 2017, to file any
motion to add new parties or amend pleadings. Plaintiff filed
the instant motion on July 20, 2018. Therefore, the first
question before the Court is whether good cause exists to
adjust the deadline to permit Plaintiff to now file the
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”). Whether “good
cause” exists under Rule 16 hinges to a large extent on
the diligence, or lack thereof, of the moving party.
GlobespanVirata, 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. See Dimensional
Commc'n., Inc. v. OZ Optics, Ltd., 148 Fed.Appx. 82,
85 (3d Cir. 2005) (upholding trial court's finding that
the movant could not show “good cause” because it
was in possession of the facts underlying its proposed
counterclaim well before the deadline for amendment).
while Plaintiff makes no specific good cause argument,
Plaintiff states that her reason for not seeking to add
Packard earlier as a defendant is because Sokoloff only filed
bankruptcy on March 14, 2018. Plaintiff states that once she
learned Sokoloff had filed for bankruptcy, she quickly
requested leave to file the present motion. The Court finds
this argument unpersuasive. Plaintiff argues in her motion to
amend that while the parties were finalizing the terms of a
settlement agreement, Sokoloff filed a Chapter 13 bankruptcy
petition and recently sought to convert the bankruptcy to a
Chapter 7 liquidation. Accordingly, Plaintiff states that
“neither Plaintiff nor the class are likely to get any
money from Sokoloff.” See Opp'n Br., D.E.
30-1, at page 2. However, as stated supra, the
question before the Court is 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
2009 WL 2905471, at *16. Here, Plaintiff bases its proposed
claim against Packard on the allegation that Packard's
name appeared on the February 10, 2015. See Proposed
Amended Complaint, D.E. 30-2, ¶ 27. Indeed, Packard is
mentioned by name in the Original Complaint, which states
that “[t]he February 10, 2015 letter is signed
“Sincerely” by Richard Sokoloff, Esq. and Joseph
Packard, Esq.” See Complaint, D.E. 1, ¶
26. Therefore, Plaintiff cannot show that she was unaware of
Packard's existence at the time she filed this action.
Plaintiff's argument that Sokoloff's bankruptcy means
she likely cannot recovery any money from him does not
explain why she could not have asserted her FDCPA claim
against Packard at the time she filed the Original Complaint.
The Court, therefore, finds that Plaintiff has not shown good
cause exists to amend the scheduling order.
on the foregoing, Plaintiff's motion for leave to amend
[D.E. 30] is denied. An appropriate ...