United States District Court, D. New Jersey
MERVELIN A. GOMEZ, Plaintiff,
FORSTER & GARBUS LLP, et al. Defendants.
Michael A. Hammer United States Magistrate Judge.
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
action arises from the alleged collection of a debt from the
wrong person. 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.”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.
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.
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.
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.
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).
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)).
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.
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”).
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 ...