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Gomez v. Forster & Garbus LLP

United States District Court, D. New Jersey

October 22, 2019

MERVELIN A. GOMEZ, Plaintiff,
v.
FORSTER & GARBUS LLP, et al. Defendants.

          OPINION

          Michael A. Hammer United States Magistrate Judge.

         I. Introduction

         This matter comes before the Court by way of Plaintiff Mervelin A. Gomez's Motion for Leave to File an Amended Complaint. Defendants oppose the motion. The Court decided this motion without oral argument. Fed.R.Civ.P. 78. For the reasons that follow, Plaintiff's motion is granted in part and denied in part.

         II. Background

         This action arises from the alleged collection of a debt from the wrong person.[1] See Proposed Am. Compl. ¶ 1, D.E. 26-3. Defendant LVNV Funding LLC (“LVNV”) purchases past-due and defaulted consumer accounts and then attempts to collect the accounts itself or through collection agencies. Id. ¶ 14. “[P]ursuant to a written agreement and power of attorney, ” Defendant Resurgent Capital Services, L.P. (“Resurgent”) directly manages LVNV's asset portfolios and collection activities. Id. ¶ 21; see also Id. ¶¶ 22, 25. “Resurgent and LVNV are under common ownership and management; both are part of the Sherman Financial Group, LLC.”[2]Id. ¶ 24. Those entities have retained the law firm of Forster & Garbus LLP (“F&G”) to assist them in their debt collection activities. See Id. ¶¶ 15-17.

         In March 2009, Defendants obtained a default judgment against a person named Mevelyn Gomez in New York pertaining to certain unpaid financial obligations on a Citibank USA, N.A. account. Id. ¶¶ 29, 31-32. “Beginning 2016-seven years after obtaining judgment against a person named Mevelyn Gomez-LVNV began sending dunning letters to Plaintiff through collection agencies.” Id. ¶ 35. Specifically, Plaintiff received a letter dated December 28, 2016 in which F&G demanded the immediate payment of $2, 505.33. Id. ¶¶ 36-37. According to Plaintiff, the problems with the collection efforts were two-fold: (1) “Plaintiff's name is Mervelin A. Gomez, not Mevelyn Gomez, ” id. ¶ 33; and (2) “Plaintiff never had a Citibank account until 2015[, ]” id. ¶ 39.

         In January 2017, “Defendants levied on [Plaintiff's] New Jersey bank account in the amount of $5, 026.50.” Id. ¶ 41. Upon learning that her account had been levied, Plaintiff repeatedly communicated to Defendants that she was not the debtor. Id. ¶¶ 43-44. On October 23, 2017, Plaintiff mailed a completed Federal Trade Commission (“FTC”) ID Theft Affidavit to F&G to substantiate her claim. Id. ¶ 46.

         Plaintiff's attempts to dispute the collection efforts were to no avail. “Defendants continued to ignore Plaintiff's pleas to return her funds; and on October 30, 2017, Defendants withdrew $2, 513.25 from Plaintiff's bank account.” Id. ¶ 47. “On November 1, 2017, Plaintiff faxed the FTC ID Theft Affidavit to F&G and requested that the levied funds be returned.” Id. ¶ 48. “The same day, Plaintiff also mailed the FTC ID Theft Affidavit to LVNV and requested that the levied funds be returned.” Id. Five weeks later, Resurgent informed Plaintiff by letter that “[f]ollowing [its] research into the matter, this account has been closed.” Id. ¶ 50.

         On December 26, 2017, Defendants returned the $2, 513.25. Id. ¶¶ 52-54. The next day, Plaintiff filed this action asserting that Defendants violated the Federal Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, in collecting a debt that she never incurred. Compl., ¶¶ 49-56, D.E. 1. As the matter proceeded through discovery, this Court entered an Amended Scheduling Order that provided that “[a]ny motion to add new parties or amend pleadings, whether by amended or third-party complaint, must be filed not later than May 10, 2019.” Amended Scheduling Order, March 19, 2019, D.E. 25. On May 10, 2019, Plaintiff filed the herein motion. Pl.'s Mot. to Amend, D.E. 26. Specifically, Plaintiff seeks to amend the complaint to include new factual allegations as well as an invasion of privacy claim (Count Two) and violations of the New Jersey Consumer Fraud Act (“CFA”), N.J. Stat. Ann. §§ 56:8-1 to -212 (Count Three).

         III. Analysis

         “Federal Rule of Civil Procedure 15(a)(2) provides a liberal standard for motions to amend: ‘The Court should freely give leave when justice so requires.'” Spartan Concrete Prods., LLC v. Argos USVI, Corp., 929 F.3d 107, 115 (3d Cir. 2019) (quoting Fed.R.Civ.P. 15(a)(2)). Notwithstanding that liberal standard, “[d]enial of leave to amend can be based on undue delay, bad faith or dilatory motive on the part of the movant; repeated failure to cure deficiencies by amendments previously allowed; prejudice to the opposing party; and futility.” Mullin v. Balicki, 875 F.3d 140, 149 (3d Cir. 2017) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); United States ex rel. Schumann v. AstraZeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir. 2014)).

         Defendants focus on the undue delay, prejudice, and futility factors in their opposition to the instant motion. “The ‘undue delay' factor recognizes that a gap between when amendment becomes possible and when it is actually sought can, in certain circumstances, be grounds to deny leave to amend.” Mullin, 875 F.3d at 151. “Undue delay is ‘protracted and unjustified'-it ‘can place a burden on the court or counterparty' or show ‘a lack of diligence sufficient to justify a discretionary denial of leave.'” Spartan Concrete Prods., LLC, 929 F.3d at 115 (quoting Mullin, 875 F.3d at 151). Denial of leave to amend is appropriate “when the movant delays completion of discovery” or “when adding a new claim would ‘fundamentally alter[] the proceeding and could have been asserted earlier.'” Id. at 115-16 (alteration in original) (quoting Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 274 (3d Cir. 2001)). The inquiry “focus[es] on the movant's reasons for not amending sooner.” Cureton, 252 F.3d at 274.

         “Prejudice involves the serious impairment of the defendant's ability to present its case.” Formosa Plastics Corp., U.S.A. v. ACE Am. Ins. Co., 259 F.R.D. 95, 99 (D.N.J. 2009) (citing Dole v. Arco Chem. Co., 921 F.3d 484, 488 (3d Cir. 1990)). Many considerations in the undue delay analysis overlap with the inquiry into whether the non-movant will suffer prejudice. See id.; Cureton, 252 F.3d at 273 (noting that the Third Circuit has “considered whether allowing an amendment would result in additional discovery, cost, and preparation to defendant against new facts or new theories”).

         Futility is assessed by determining whether the proposed amendment can “withstand a renewed motion to dismiss.'” Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988). In this analysis, the Court “applies the same standard of legal sufficiency as applies under Rule 12(b)(6).” City of Cambridge Retirement Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878 (3d Cir. 2018) (quoting In re Burlington Coat Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)). The inquiry is not whether the movant will ultimately prevail, but whether the proposed pleading sets forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,550 U.S. 544, 570 (2007). More specifically, the Court “accept[s] all factual allegations in the complaint as true and, examining for plausibility, ‘determine[s] whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'” In re Lipitor Antitrust Litig., 868 F.3d 231, 249 (3d Cir. 2017) (quoting Bronowicz v. Allegheny County, 804 F.3d 338, 344 (3d Cir. 2015)). The plausibility standard is not a ...


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