Almada v. Krieger Law Firm, A.P.C. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JEFFREY A. ALMADA, on behalf of Case No. 19-cv-2109-BAS-MDD 11 himself and all other similarly situated class members, ORDER GRANTING 12 PLAINTIFF’S EX PARTE Plaintiff, MOTION FOR LEAVE TO FILE 13 FIRST AMENDED COMPLAINT v. 14 [ECF No. 13] KRIGER LAW FIRM, A.P.C., 15 Defendant. 16 17 18 Presently before the Court is Plaintiff Jeffrey A. Almada’s Ex Parte Motion 19 for Leave to File First Amended Complaint. (“Mot.,” ECF No. 13.) Plaintiff seeks 20 to amend his complaint to include information he learned at the deposition of 21 Defendant’s 30(b)(6) deponent. Plaintiff moves ex parte, rather than by noticed 22 motion, in an effort to keep the scheduled deadlines intact. (“Hart Decl.,” ECF No. 23 13-1, ¶ 20.) Plaintiff has complied with this Court’s standing orders regarding ex 24 parte motions; counsel’s declaration details her multiple efforts to contact defense 25 counsel regarding Plaintiff’s intent to move ex parte. Plaintiff’s counsel states 26 defense counsel never responded to her emails and phone calls. (Id. ¶ 21.) 27 This Court’s standing orders provide that ex parte applications that are not 1 on that ground. Plaintiff filed his ex parte Motion on Thursday May 28, 2020, and 2 as of Tuesday, June 2, 2020, no opposition has been filed. Thus, the Motion may be 3 granted on this basis alone, but the Court will also evaluate the merits of the Motion. 4 I. LEGAL STANDARD 5 Under Federal Rule of Civil Procedure 15(a)(1), a plaintiff may amend its 6 complaint once as a matter of course within specified time limits. “In all other cases, 7 a party may amend its pleading only with the opposing party’s written consent or the 8 court’s leave. The court should freely give leave when justice so requires.” Id. 9 15(a)(2). Nevertheless, “[i]n deciding whether justice requires granting leave to 10 amend, factors to be considered include the presence or absence of undue delay, bad 11 faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, 12 undue prejudice to the opposing party and futility of the proposed amendment.” 13 Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman 14 v. Davis, 371 U.S. 178, 182 (1962)). Further, the court has discretion when 15 considering the aforementioned factors. See Nat’l Council of La Raza v. Cegavske, 16 800 F.3d 1032, 1045 (9th Cir. 2015). “Futility of amendment can, by itself, justify 17 the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th 18 Cir. 1995). 19 II. ANALYSIS 20 Plaintiff contends that since he filed his complaint, he discovered that in 21 addition to the actions and facts already alleged, Defendant is also in violation of the 22 Fair Debt Collection Practices Act and the Rosenthal Fair Debt Collection Practices 23 Act, for charging him unauthorized fees. Thus, Plaintiff seeks leave to file an 24 amended complaint to include these additional violations. (Mot. at 1.) He states the 25 allegations in his complaint are based on a letter he received from Defendant 26 demanding repayment of a debt. The letter “also included some handwritten 27 changes” that Plaintiff and his counsel could not understand. (Id. at 2.) Defendant’s | || form the basis of the newly alleged causes of action. 2 Plaintiff states the timeline of this case will likely not be changed if he is 3 || permitted to amend his complaint, as he does not require additional discovery and he 4 ||intends to timely move to certify the class. (Ud. at 4.) Although Plaintiff does not 5 || address it, the deadline to amend the pleadings was March 20, 2020, (see ECF No. 6 ||9) and Plaintiff's motion was filed two months after this date. Still, the Court notes 7 ||the importance of Plaintiffs intention to continue this case in a timely manner. The 8 ||Court also finds no undue delay on behalf of Plaintiff, who discovered the basis for 9 || the proposed amendments during discovery. And, as noted above, Defendant did not 10 || file an opposition the Motion to address any prejudice that would result from the 11 ||amendment or whether or not it believes the new allegations are futile. 12 In sum, the Court finds Plaintiff should be granted leave to amend his 13 ||complaint in the interest of justice. The Court GRANTS Plaintiff's ex parte motion. 14 || Plaintiff shall file the amended complaint attached to his motion on or before June 3, 15 ||2020. 16 IT IS SO ORDERED. /\ yy 17 || DATED: June 2, 2020 (ying (Byphan. 6 18 United States District Judge 19 20 21 22 23 24 25 26 27 28