Tate v. Bennett Law, PLLC

• Decision Date: 22 April 2013
• Docket Number: 3:12-CV-00590-SU
• Parties: JAMES TATE, Plaintiff, v. BENNETT LAW, PLLC, Defendant.
• Court: U.S. District Court — District of Oregon

JAMES TATE, Plaintiff,

v.BENNETT LAW, PLLC, Defendant.

3:12-CV-00590-SU

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

April 22, 2013

ORDER

BROWN, Judge.

Magistrate Judge Patricia Sullivan issued an Order (#36) on January 29, 2013, in which she granted Plaintiff's Motion (#14) to Extend Deadlines and Plaintiff's Motion (#16) for Leave to Amend Complaint and Add Janice Tate as Additional Plaintiff. Defendant filed Objections to the Order. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72.

In accordance with Rule 72(a), "[w]hen a pretrial matter not dispositive of a party's claim or defense is referred to amagistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision." The standard of review for an order with objections is "clearly erroneous" or "contrary to law." See also 28 U.S.C. § 636 (b) (1) (A) (applying the "clearly erroneous or contrary to law" standard of review for nondispositive motions). If a ruling on a motion is not determinative of "a party's claim or defense," it is not dispositive and, therefore, is not subject to de novo review as are proposed findings and recommendations for dispositive motions under Title 28 U.S.C. § 636(b)(1)(B).

BACKGROUND

On April 4, 2012, Plaintiff James Tate filed a Complaint in this Court in which he asserted Defendant Bennett Law, PLLC, violated the Pair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692e and 1692d. Specifically, Plaintiff alleged:

5. Defendant is a "debt collector" as defined by the FDCPA, 15 U.S.C. § 1692a(6).

6. Plaintiff is a "consumer" as defined by the FDCPA, 15 U.S.C. § 1692a(3).

7. All activities of Defendant set out herein were undertaken in connection with the collection of a "debt," as defined by 15 USC § 1692a(5).

8. Within the last year, Defendant took multiple actions in an attempt to collect a debt from Plaintiff. Defendant's conduct violated the FDCPA in multiple ways, including the following.

9. Failing to disclose Defendant's true corporate or business name in a telephone call to Plaintiff, including representing in voicemails that Defendant's business name was "Bennett & Deloney." Defendant's business name is Bennett Law and Defendant is owned by Michael Bennett. Michael Bennett was law partners with Richard Deloney and there was a firm called Bennett & Deloney, but it is defunct (§ 1692d(6));

10. Failing to notify Plaintiff during each collection contact that the communication was from a debt collector, including leaving voicemails that fail to make this disclosure (§ 1692e(11)).

11. As a result of the aforementioned violations, Plaintiff suffered and continues to suffer injuries to Plaintiffs feelings, personal humiliation, embarrassment, mental anguish and severe emotional distress.

12. Defendant intended to cause, by mean of the actions detailed above, injuries to Plaintiff's feelings, personal humiliation, embarrassment, mental anguish and severe emotional distress.

13. Defendant's actions, detailed above, were undertaken with extraordinary disregard of, or indifference to, known or highly probable risks to purported debtors.

14. To the extent Defendant's actions, detailed in paragraphs above, were carried out by an employee of Defendant, that employee was acting within the scope of his or her employment.

Compl. at ¶¶ 5-14.

On July 31, 2012, Defendant filed an Answer in which it denied all of the allegations in paragraphs 5-14 of the Complaint and asserted three Affirmative Defenses: Plaintiff failed to state a claim; to the extent that Plaintiff can establish a violation of the FDCPA by Defendant, that violation was notintentional and resulted from bona fide error; and Plaintiff rejected an offer of settlement.

On November 15, 2012, Plaintiff filed a Motion for Leave to Amend Complaint in order to add Plaintiff's wife, Janice Tate, as a plaintiff. Plaintiff conceded in his Motion that the limitations period for Janice Tate to bring claims against Defendant under the FDCPA had passed, but he asserted Janice Tate's proposed claims relate back to Plaintiff's claims under Federal Rule of Civil Procedure 15(c).

In its Response Defendant contended Rule 15 (c) does not apply when a plaintiff seeks to add a new plaintiff to an action rather than to substitute a different plaintiff for an existing plaintiff, and, therefore, the Court should deny Plaintiff's Motion.

On January 29, 2013, Judge Sullivan issued an Order granting Plaintiff's Motion for Leave to Amend on the ground that Janice Tate's claims relate back to Plaintiff's claims under Rule 15(c).

On February 12, 2013, Defendant filed Objections to Judge Sullivan's Order in which Defendant asserted Rule 15(c) does not apply when a plaintiff seeks to add a new plaintiff and also that Plaintiff has not established he did not know or could not have known within the limitations period that Defendant sought to collect a debt from Janice Tate rather than from Plaintiff.

The Court took this matter under advisement on February 28, 2013.

DISCUSSION

I. Rule 15(c) does not apply when adding a new plaintiff.

Plaintiff's Complaint and proposed Amended Complaint do not contain any specific dates for the alleged violations against Janice Tate, and the voicemails that Plaintiff submitted in support of his Motion for Leave to Amend do not specify dates for the allegedly offending telephone calls. Nevertheless, the parties do not appear to dispute that Janice Tate's claims will be untimely if there is not a procedural mechanism that permits her claims to relate back to the date that Plaintiff filed his Complaint.

As noted, Plaintiff contends Janice Tate's claims relate back to the filing of the original Complaint in this matter under Rule 15(c) . Rule 15(c) (1) provides:

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading; or(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4 (m) for serving the summons and complaint, the party to be brought in by amendment:

(I) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

As Defendant points out, Rule 15(c)(1)(C) on its face allows for relation back of claims only when an amendment seeks to change a party. It does not on its face allow relation back of claims asserted by a newly-added party while the original party remains in the action. In addition, the language of Rule 15(c)(1)(C)(I) and (ii) suggests this provision applies to claims brought against new defendants rather than claims brought by new plaintiffs.

Plaintiff, nevertheless, points to Arch Chemicals, Inc. v. Radiator Specialty Co., 727 F. Supp. 2d 997 (D. Or. 2010), to support his assertion that Rule 15(c)(1)(C) allows relation back of claims brought by newly-added parties. In Arch Chemicals the court concluded, among other things, that even though Rule 15(c) does not by its terms expressly apply to substituted plaintiffs, the approach adopted in Rule 15(c) "extends by analogy to amendments changing plaintiffs." Arch Chew., 727 F. Supp. 2d at1005 (citation omitted). In reaching that conclusion, however, the Arch Chemical court relied on two Ninth Circuit cases that do not support an extension of the rule in circumstances like those in the case now before this Court. The first case, Immigrant Assistance Project of Los Angeles County Federation of Labor v. INS, was a class action in which the plaintiffs added additional plaintiffs to the class. 306 F.3d 842, 857 (9th Cir. 2002). In the second case, Raynor Bros. v. American Cyanimid Company, the plaintiff sought to substitute a defendant, and the Ninth Circuit held "[t]he substitution after the applicable statute of limitations may have run is not significant when the change is merely formal and in no way alters the known facts and issues on which the action is based." 695 F.2d 382, 384 (9th Cir. 1982). Plaintiff does not seek to substitute a defendant, however, but instead seeks to add a plaintiff. In addition, this matter is not a class action. Thus, the cases relied on in Arch Chemicals do not appear to support extension of Rule 15(c) to allow relation back of claims asserted by newly-added plaintiffs.

Nevertheless, the Court concludes Plaintiff may properly add Janice Tate as a plaintiff in this matter under Federal Rule of Civil Procedure 20 as set out below and, therefore, the Court ultimately does not need to decide whether Rule 15(c)(1)(C) extends beyond substitution of a defendant.

II. Permissive joinder.

Federal Rule of Civil Procedure 20(1) provides:

(a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action.

"Rule 20 encourages broad joinder." Denham v. Aranda, No. 09CV1505 JLS (WVG), 2012 WL 3561988, at *3 (S.D. Cal. Aug. 17, 2012). See also League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977) ("[Rule 20] is to be construed liberally in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits."). Nevertheless "[e]...