United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY UNITED STATES DISTRICT JUDGE
Renewed Motion to Amend Complaint filed on August 18, 2017,
is pending before the Court. (Doc. 40.) Plaintiff files the
motion pursuant to Federal Rule of Civil Procedure 15(a) (2)
and asserts that granting the motion is consistent with the
requirements of the rule. (Doc. 40 at 1; Doc. 41 at 2.)
Defendant opposes the motion on the basis that it is
"deficient and futile"--"the entirely new
theory of the case  should be denied as futile since it
asserts a claim that has no good faith basis in law or
fact." (Doc. 44 at 1, 5.) The Court concludes the motion
is properly denied.
original three-page Complaint, Plaintiff alleges that
Defendant violated the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1692, et.
seq., when it sent him a letter attempting to
collect a debt. (Doc. 1 at 7 [Compl. ¶ 1].) Plaintiff
pointed to the following language contained in the letter at
Our client has authorized us to report this matter as a
collection account to a credit reporting agency. You are
hereby notified that this account may be reported [sic] a
credit reporting agency on or after fourteen (14) days from
the date of this letter. You have the opportunity to prevent
this from happening by contacting us within the next thirty
(30) days to pay this account in full or agree on acceptable
(Doc. 1 at 8 [Compl. ¶ 12].) Plaintiff avers that this
language is a "threat to report to credit reporting
agencies [which] is false, deceptive, and misleading."
(Doc. 1 at 8 [Compl. ¶ 13].) Plaintiff identified the
falsehood to be that Defendant "has never reported the
Account to any of the three major credit reporting
agencies" and this allegation was "likely to have
evidentiary support after a reasonable opportunity for
further investigation or discovery." (Doc. 1 at 8
[Compl. ¶ 14].) No further bases for the FDCPA claim
were contained in the Complaint.
initially sought to amend his Complaint "[a]fter a
deposition of a third-party credit reporting agency"
(Doc. 41 at 6) with a Motion to Amend Complaint (Doc. 25)
filed on May 12, 2017. The proposed Amended Complaint based
the FDCPA claim on both the falsehood alleged in the
Complaint and an additional allegation that Defendant misled
the consumer into believing that damage to his credit would
have a longer impact than it would. (Doc. 25-1 at
the motion was fully briefed (Docs. 26, 32, 35), Plaintiff
sought to amend the proposed amended complaint by stipulation
on August 2, 2017. (Doc. 36.) Plaintiff sought to eliminate
the word "false" from paragraph 12 of the proposed
amendment and the entirety of paragraphs 14, 16, and 18.
(Doc. 36 at 1.) By Order of August 4, 2017, the Court
rejected the attempted amendment by stipulation and directed
Plaintiff to file a revised motion to amend. (Doc. 37.) The
result is the Renewed Motion to Amend Complaint (Doc. 40) now
before the Court.
proposed Amended Complaint (Doc. 40-1) contains one count
based on the same language in the debt collection letter sent
to Plaintiff. (Doc. 1 at 8 [Compl. ¶ 12]; Doc. 40-1 at 3
[Am. Compl. ¶ 12].) Plaintiff continues to assert that
the threat to report to credit reporting agencies language is
"deceptive and misleading, " but he no longer avers
that the language is "false, " an elimination
related to the averment that Defendant contends it did in
fact report the account to a credit reporting agency (Doc. 1
at 8 [Compl. ¶ 13-14]; Doc. 40-1 at 3 [Am. Compl.
¶¶ 13-15].) Plaintiff now bases his FDCPA claim on
the premise that information in the letter regarding the
authority and potential of providing a report of the account
to a credit reporting agency is "deceptive and
misleading information" because Defendant knew that the
account would appear on Plaintiff's credit report for a
much shorter time than Defendant's letter would lead a
consumer to believe. (Doc. 40-1 at 3 [Am Compl. ¶ 16].)
Plaintiff states that
[b]y telling the consumer only that the account would be
reported, without further advising the consumer that the
reporting would be deleted once MiraMed stopped collecting
the debt, MiraMed misled the consumer into believing that the
damage to the credit report would have a much longer impact
than it really would.
(Doc. 40-1 at 4 [Am. Compl. ¶ 18].)
briefing of the pending motion is now complete with the
filing of Plaintiff's supporting brief (Doc. 41) on
August 18, 2017, and Defendant's opposition brief (Doc.
44) on September 11, 2017. The matter became ripe for
disposition on September 26, 2017, when Plaintiff failed to
file a reply brief by the September 25, 2017,
asserts that he should be allowed to file an amended
complaint because leave to amend should be freely given, no
party is prejudiced by the amendment, and the amendment was
made in a timely manner. (Doc. 41 at 7.) Defendant responds
that it will be unduly prejudiced by amendment "because
it demonstrates bad faith litigation by Plaintiff in ignoring
the facts that clearly defeated his original complaint and
entering to continue the litigation under a proposed
alternative claim that has no basis in law or fact."
(Doc. 44 at 6.)
Rule of Civil Procedure 15(a)(2) provides that leave to amend
should be freely given when justice so ...