Daugherty v. American Express Co. ( 2022 )

1 KAZEROUNI LAW GROUP, APC Gil Melili, Esq. (SBN: 337116) 2 gil@kazlg.com 3 245 Fischer Avenue, Suite D1 Costa Mesa, CA 92626 4 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 5 6 Attorneys for Plaintiff, Natalie Daugherty 7 UNITED STATES DISTRICT COURT FOR 8 THE EASTERN DISTRICT OF CALIFORNIA 9 NATALIE DAUGHERTY, Case No.: 2:22-CV-00151-KJM-DB 10 Plaintiff, 11 STIPULATION AND ORDER RE: FILING vs. 12 OF PLAINTIFF’S FIRST AMENDED COMPLAINT 13 AMERICAN EXPRESS CO.; EQUIFAX INFORMATION SERVICES LLC; 14 EXPERIAN INFORMATION SOLUTIONS, INC.; AND TRANS UNION LLC, 15 Defendants. 16 17 Plaintiff Natalie Daugherty (“Plaintiff”) and Defendant American Express Co. 18 (“Defendant” or “American Express”) (together, the “Parties”), through their counsel of record, 19 hereby jointly request that Plaintiff be given leave to amend her Complaint for the sole purpose 20 of substituting American Express National Bank in place of American Express Co. as a Defendant 21 in this matter. Therefore, the Parties hereby stipulate as follows: 22 23 WHEREAS, on January 25, 2022, Plaintiff filed this action against multiple defendants 24 alleging violations of the Rosenthal Fair Debt Collection Act, Fair Credit Reporting Act, and 25 California Credit Reporting Agencies Act. Dkt. No. 1. 26 27 28 1 STIPULATION AND [PROPOSED] ORDER RE: FILING OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 WHEREAS, Plaintiff’s complaint named American Express Co., rather than American 2 Express National Bank, as a defendant in this action. See id. 3 WHEREAS, the Stipulation to Stay Action as to American Express Pending the 4 Completion of Arbitration indicated, Plaintiff should have named American Express National 5 6 Bank, rather than American Express Co. as a defendant in this matter. Dkt. No. 18, p. 2. 7 WHEREAS, on May 17, 2022, Plaintiff filed the Parties’ Joint Rule 26(f) Status Report, 8 indicating that she reserved the right to change American Express’s name on the Complaint. Dkt. 9 No. 26, pp. 3-4. 10 WHEREAS, the Court ordered Plaintiff to “take any action to correct the name of 11 12 Defendant American Express within thirty [30] days[.]” Dkt. No. 27. 13 WHEREAS, Rule 15(a) provides that a court “should freely give leave [to amend] when 14 justice so requires.” Fed. R. Civ. P. 15(a)(2). 15 WHEREAS, “[i]n the absence of any apparent or declared reason—such as undue delay, 16 bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 17 18 amendments previously allowed undue prejudice to the opposing party by virtue of allowance of 19 the amendment, futility of the amendment, etc.—the leave sought should . . . be ‘freely given.’” 20 Forman v. Davis, 371 U.S. 178, 182 (1962). 21 WHEREAS, Rule 15’s intent is to “facilitate decision on the merits, rather than on the 22 pleadings or technicalities.” Chudacoff v. Univ. Med. Center of S. Nev., 649 F.3d 1143, 1152 (9th 23 24 Cir. 2011). As such, the “policy of favoring amendments to pleadings should be applied with 25 ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). 26 WHERAS, in deciding on a Rule 15 motion, the Court must consider the following 27 factors: (a) undue delay; (b) bad faith; (c) prejudice to the opponent; and (d) futility of amendment. 28 2 STIPULATION AND [PROPOSED] ORDER RE: FILING OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 Loehr v. Ventura County Cmty. Coll. Dist., 743 F.2d 1310, 1319 (9th Cir. 1984); accord Padilla 2 v. Skytel Sys., LLC, No. 1:19-cv-00351-AWI-BAM, 2019 U.S. Dist. LEXIS 150756, at *4 (E.D. 3 Cal. Sep. 3, 2019). 4 WHEREAS, “the consideration of prejudice to the opposing party . . . carries the greatest 5 6 weight[.]” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 7 WHEREAS, “[a]bsent prejudice, or a strong showing of any of the remaining three factors, 8 a presumption exists under Rule 15(a) in favor of granting leave to amend.” Padilla, 2019 U.S. 9 Dist. LEXIS 150756, at *4 (citing Eminence Capital, 316 F.3d at 1052). 10 WHEREAS, there is no undue delay in bringing this motion because the Court has ordered 11 12 Plaintiff to file the necessary papers to name American Express National Bank as the correct party 13 in this action by July 1, 2022. 14 WHEREAS, Plaintiff’s motion is not brought in bad faith. Instead, it is brought to fix a 15 mistake made by Plaintiff as to the naming of the correct defendant to this action. Indeed, the 16 mistake made by Plaintiff here involved the conflation of American Express Co., a parent 17 18 company, with American Express National Bank, a subsidiary of that parent company. 19 WHEREAS, Plaintiff’s motion will not prejudice American Express Co. and/or American 20 Express National Bank because (i) American Express National Bank has already made an 21 appearance in this action (see, e.g., Dkt. No. 18); (ii) this action is already stayed as to American 22 Express National Bank pending arbitration; and (iii) American Express National Bank and 23 24 American Express Co. do not oppose Plaintiff’s request for leave to amend. 25 WHEREAS, the proposed amendment to Plaintiff’s complaint is not futile because the 26 Court ordered Plaintiff to file the necessary papers to effectuate this amendment, and the 27 amendment would assure that the correct defendant is named in this action. 28 3 STIPULATION AND [PROPOSED] ORDER RE: FILING OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 IT IS THEREFORE STIPULATED AND AGREED, by and between the parties hereto, 2 through their attorneys of record, that Plaintiff should be granted leave to amend to file Exhibit 3 “A” as the First Amended Complaint. 4 IT IS SO STIPULATED 5 6 Dated: July 5, 2022 Respectfully Submitted, 7 KAZEROUNI LAW GROUP, APC 8 9 By: /s/ Gil Melili Gil Melili (Bar No. 337116) 10 KAZEROUNI LAW GROUP APC 245 Fischer Avenue, Unit D1 11 Costa Mesa, CA 92626s 12 Tel: (800) 400-6808 Fax: (800) 520-5523 13 Email: gil@kazleg.com Attorney for Plaintiff 14 15 Dated: July 5, 2022 Respectfully Submitted, 16 STROOCK & STROOCK & LAVAN LLP 17 18 By: /s/ Brian C. Frontino Brian C. Frontino (Bar No. 222032) 19 STROOCK & STROOCK & LAVAN LLP 2029 Century Park East, Floor 18 20 Los Angeles, CA 90067-3086 21 Tel: (310) 556-5800 Email: bfrontino@stroock.com 22 Attorney for Defendant American Express National Bank 23 24 25 26 27 28 4 STIPULATION AND [PROPOSED] ORDER RE: FILING OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 SIGNATURE CERTIFICATION 2 I, Gil Melili, Esq., hereby certify that the content of this document is acceptable to all 3 counsels listed above, and that I have obtained their authorizations to affix their electronic 4 signatures to this document. 5 By: /s/ Gil Melili 6 Gil Melili (Bar No. 337116) KAZEROUNI LAW GROUP APC 7 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 8 Tel: (800) 400-6808 9 Fax: (800) 520-5523 Email: gil@kazleg.com 10 Attorney for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 STIPULATION AND [PROPOSED] ORDER RE: FILING OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 ORDER 2 3 WHEREFORE, the Parties having so stipulated, IT IS HEREBY ORDERED that Plaintifi 4 ||1s granted leave to amend to file Exhibit “A” as the First Amended Complaint. 5 IT IS SO ORDERED. 6 ||DATED: July 5, 2022. 7 /\ (] tied { 9 CHIEF NT] ED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER RE: FILING OF PLAINTIFF’S FIRST AMENDED COMPLAINT