Parish v. Frazier

REVISED December 16, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-60476
Summary Calendar
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ANGELA PARISH,
Plaintiff-Appellant,
VERSUS
DAVID FRAZIER, Individually and as Attorney for Medical Credit
Service, Inc., Also Known as Merchants Collection Service;
MEDICAL CREDIT SERVICE, INC., also known as Merchants Collection
Service,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
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October 13, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:
Angela Parish appeals the district court’s order granting the
defendants’ motion for summary judgment and denying her motion for
leave to amend her complaint. For the reasons that follow, we
affirm.
I.
Parish sued the defendants for Fair Debt Collection Practices
Act (FDCPA) violations. Parish’s suit was predicated on a
collections complaint the defendants filed against her to recover
a debt Parish allegedly owed Memorial Hospital at Gulfport
(“Memorial”). Defendants maintain that defendant Medical Credit
Service (“MCS”) had a written contract with Memorial to collect
debts for unpaid services. After Parish failed to pay Memorial the
amount set forth in an itemized bill for treatment she received at
Memorial, her account was forwarded to MCS for collection. When
MCS failed to obtain payment from Parish, defendant Frazier filed
a collection complaint in state court. Parish filed a motion to
dismiss on grounds that the complaint was barred by the applicable
statute of limitations. According to defendants, that motion is
still pending. Defendants filed a motion for summary judgment on
Parish’s complaint, which the district court granted. After the
defendants filed their summary judgment motion, Parish sought to
amend the instant complaint to allege improper fee splitting and
unauthorized practice of law by the defendants. The district court
denied this motion. On appeal, Parish complains of the district
court’s order granting summary judgment and its order denying her
motion to amend the complaint.
II.
We first address the district court’s denial of Parish’s
motion for leave to amend her complaint. On appeal, we review the
denial of such a motion for abuse of discretion. Gregory v.
Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). Under Federal Rule of
Civil Procedure 15(a), leave to amend “shall be freely given when
justice so requires.” However, leave to amend “is by no means
automatic.” Little v. Liquid Air Corp., 952 F.2d 841, 845-6 (5th
Cir. 1992); Addington v. Farmer’s Elevator Mutual Insur. Co., 650
F.2d 663,666 (5th Cir. 1981); Layfield v. Bill Heard Chevrolet Co.,
607 F.2d 1097, 1099 (5th Cir. 1979). The decision “lies within the
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sound discretion of the district court.” Little, 952 F.2d 841,
846.
The district court found that allowing Parish to amend would
unduly prejudice the defendants by increasing the delay and by
expanding the allegations beyond the scope of the initial
complaint. See Little, 952 F.2d 841, 846; Addington, 650 F.2d 663,
667; Layfield, 607 F.2d 1097, 1099; Ferguson v. Roberts, 11 F.3d
696, 706-7 (7th Cir. 1993). Also, it found that the seven month
delay between the filing of the original complaint and the motion
for leave to amend could have been avoided by due diligence, as
plaintiff could have raised the additional claims in her complaint
or at least sought to amend at an earlier time. See Layfield, 607
F.2d 1097, 1099. Plaintiff bears the burden of showing that delay
was due to oversight, inadvertence or excusable neglect, and the
district court found that Parish made no such showing. Gregory,
634 F.2d 199, 203; see also Little, 952 F.2d 841, 846.
As the district court noted, we more carefully scrutinize a
party’s attempt to raise new theories of recovery by amendment when
the opposing party has filed a motion for summary judgment.
Little, 952 F.2d 841, 846 and n. 2; see also Addington, 650 F.2d
663, 667; Freeman, 381 F.2d 459, 469-70. Parish filed her motion
to amend on the same day defendants filed their motion for summary
judgment. The district court found that Parish’s attempt to
broaden the issues would likely require additional discovery and
another motion for summary judgment, which would unduly prejudice
the defendants and raise concerns about seriatim presentation of
facts and issues.
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The district court did not abuse its discretion in denying the
motion to amend.
III.
Next, we address the district court’s grant of the defendants’
motion for summary judgment. Parish appeals two aspects of the
district court’s order. First, she alleges that the court erred in
granting the motion on the question of whether defendants violated
the FDCPA, 15 U.S.C. § 1692 et seq, by suing on a time-barred debt.
Second, she alleges that the court erred in granting the motion on
the question of whether defendants violated § 1692e of the FDCPA
by using a “false, deceptive, or misleading” practice in attaching
to their collections complaint a sworn affidavit that the debt had
been assigned, when in fact there was no assignment.
A.
We review an appeal from a summary judgment de novo. River
Production Co., Inc. v. Baker Hughes Production Tools, Inc., 98
F.3d 857, 859 (5th Cir. 1996); McMurtray v. Holladay, 11 F.3d 499,
502 (5th Cir. 1993). Summary judgment is proper when the evidence
shows that there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.
F.R.Civ.P. 56(c).
B.
In support of her first argument, Parish cites the three year
statute of limitations for a suit to collect on an account, and
points out that defendants sued almost four years after the action
accrued. Miss. Code Ann. § 15-1-29 (Parish actually cites Miss.
Code Ann. § 11-53-81, but presumably meant to cite § 15-1-29).
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We agree with the district court that the suit by defendants
was not time barred because of the applicability of Miss. Code Ann.
§ 15-1-51 and Miss. Const. Art. 4, § 104. Miss. Code Ann. § 15-1-
51 and Miss. Const. Art. 4, § 104 provide that the statute of
limitations in civil cases does not run against the state, its
political subdivisions, or municipal corporations thereof. Here,
the underlying debt was owed to Memorial, a “community hospital”
existing under Miss. Code Ann. § 41-13-10 et seq. As such,
Memorial is a subdivision of the State of Mississippi within the
meaning of Miss. Const. Art. 4, § 104 and Miss. Code Ann. § 15-1-
51, and the statute of limitations would be inoperative against it.
Enroth v. Memorial Hospital at Gulfport, 566 So. 2d 202, 206 (Miss.
1990). Under Miss. Code Ann. §§ 19-3-41(2) and 21-17-1, even if
a collection agency or attorney is retained to collect a debt, the
debt is still “owed” to the municipality.
Thus, we agree with the district court that because the debt
was owed to a governmental entity, the statute of limitations did
not run, and the debt remains due and payable under Miss. Code Ann.
§ 15-1-51. As such, the suit by defendants against Parish was not
time barred. Defendants did not violate the FDCPA on this basis.
C.
We next address Parish’s second argument that the court erred
in granting the motion on the question of whether defendants
violated the FDCPA, 15 U.S.C. § 1692e, by using a “false,
deceptive, or misleading” practice in attaching to their
collections complaint a sworn affidavit that the debt had been
assigned, when in fact there was no assignment.
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The district court found that § 1692e(11) was not applicable,
by its express terms, to a complaint or pleading. Also, even if
the section were applicable, the district court found that there
would have been no violation. Likewise, the court found no
violation of § 1692e(12) (even assuming it applied) because the
record clearly indicates that the relationship between Memorial and
the defendants was that of creditor and debt collector. We agree.
The attachments to the collections complaint in question
expressly indicate that Parish’s debt was assigned “for collection”
only and authorize the defendants to take legal action on behalf of
Memorial as Memorial’s agents, not in their own right. Further,
the contract between Memorial and the defendants also specifies
that the debt was assigned only for collection and that any amounts
collected by the defendants were to be paid in full to Memorial.
Thus, Memorial clearly retained control and ownership of the debt
owed by Parish. The sworn affidavit was not misleading, and does
not constitute a violation of the FDCPA § 1692e by the defendants.
IV.
For the above reasons, we AFFIRM the judgment of the district
court.
AFFIRMED.
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