McNall v. CREDIT BUREAU OF JOSEPHINE COUNTY

689 F.Supp.2d 1265

Michael McNALL; and Karyl McNall, Plaintiffs, v. CREDIT BUREAU OF JOSEPHINE COUNTY, an Oregon Corporation; and Christopher D. Mecca, Defendants.

Civil No. 07-3075-CL.

United States District Court, D. Oregon, Medford Division.

February 5, 2010.

G. Jefferson Campbell, Jr., G. Jefferson Campbell, P.C., Medford, OR, for Plaintiffs.

Christopher D. Mecca, Grants Pass, OR, David B. Paradis, Brophy Mills Schmor Gerking Brophy & Paradis LLP, Medford, OR, for Defendants.

ORDER

CLARKE, United States Magistrate Judge:

In this action, plaintiffs allege violations of the Fair Credit Reporting Act (FCRA), violations of the Fair Debt Collection Practices Act (FDCPA), and defamation and financial injury. Plaintiffs seek injunctive relief, monetary damages, and costs and expenses, including attorney fees. This court has jurisdiction pursuant to 15 U.S.C. § 1681p and 28 U.S.C. §§ 1331 and 1367. The parties have executed written consents to entry of judgment by a magistrate judge (#60). 28 U.S.C. § 636(c). Before the court is defendant Mecca's motion for summary judgment (# 66) and motion to strike (# 116); defendant Credit Bureau of Josephine County's (CBJC) motion for summary judgment¹ (# 70) and motion to strike (# 121); plaintiffs' motion for partial summary judgment (# 102); and plaintiffs' motion for leave to file amended complaint (# 106). For the reasons explained below, plaintiffs' motions are denied, and defendant Mecca's motion for summary judgment is granted and defendant CBJC's motion for summary judgment is granted in part and denied in part.

I. DISCUSSION

Plaintiffs' Motion to Amend

Plaintiffs move for leave to file second amended complaint which eliminates allegations in Count Three against defendant Mecca and Count Six against defendant CBJC for defamation, and adds a new claim in Count Four against defendant Mecca for violation of 15 U.S.C. § 1692g(a). Defendant Mecca opposes plaintiffs' motion on the grounds the amendment will unduly delay the process and is unfair to defendant who has filed a motion for summary judgment, and the amendment is futile.

Leave to amend should be "freely given" "when justice so requires." Fed. R.Civ.P. 15(a)(2); Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir.1999). The court considers four factors in determining whether to allow an amendment: "(1) bad faith on the part of the plaintiffs; (2) undue delay; (3) prejudice to the opposing party; and (4) futility of the proposed amendment." Lockheed Martin, 194 F.3d at 986.

Plaintiffs filed their motion on October 20, 2009, the same date they filed a response in opposition to both defendants' motions for summary judgment and their own motion for partial summary judgment. Counsel states in his affidavit in support of the motion that, shortly after his appearance in this action in January 2009, he gave notice to defense counsel that he would be filing a motion for leave to file a second amended complaint following the completion of discovery. Counsel states that, after completion of discovery in August 2009, he consulted with defendants' attorneys regarding the filing of the motion and they refused to consent to the filing of an amended complaint as they intended to file motions for summary judgment.

As shown in counsel's affidavit, plaintiffs' motion was filed after the close of discovery and after defendants' motions for summary judgment on all claims had been filed. Multiple extensions of the discovery date were sought by plaintiffs and granted by the court. Although counsel states in his affidavit that he gave notice of his intent to file the motion to amend after the close of discovery to limit plaintiffs' claims to those that appeared to be supported by the facts, no explanation is offered for the delay in seeking leave to amend from the court after he learned from defense counsel in August 2009 that counsel would not consent to the filing of an amended complaint and learned that motions for summary judgment would be filed. In addition, this claim against defendant Mecca was known to plaintiffs at the commencement of the case, as is shown in allegations similar to this new claim included in their original complaint. While delay is not dispositive, it is relevant, particularly where no explanation is given for the delay. Lockheed Martin, 194 F.3d at 986. The timing of a motion to amend after completion of discovery and after a motion for summary judgment has been filed weighs heavily against allowing amendment. Schlacter-Jones v. Gen. Tel. of Cal., 936 F.2d 435, 443 (9th Cir.1991), overruled on another ground by Cramer v. Consol. Freightways, Inc., 255 F.3d 683 (9th Cir.2001).

In addition to the untimeliness of plaintiffs' motion to amend the complaint, amendment of the complaint would be futile because, even if amendment was allowed, the new claim would be dismissed on summary judgment.² See Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir.1986) (amendment is futile if it could be defeated on a motion for summary judgment). Plaintiffs seek leave to add a new claim in Count Four for violation of 15 U.S.C. § 1692g(a) against defendant Mecca, alleging that defendant Mecca did not provide the required notice of debt to them within five days of his June 11, 2007, initial communication with them. 15 U.S.C. § 1692g(a) provides in pertinent part that: "Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication... send the consumer a written notice containing certain specified information concerning the debt." The court agrees with those courts which have determined that a subsequent debt collector is not required to provide additional notice and another thirty-day validation period after a validation notice has been timely sent to the debtor. Ditty v. CheckRite, Ltd., 973 F.Supp. 1320, 1329 (D.Utah 1997); Oppong v. First Union Mortgage Corp., 566 F.Supp.2d 395, 403-04 (E.D.Pa. 2008), affd, 326 Fed.Appx. 663 (3d Cir. 2009); Nichols v. Byrd, 435 F.Supp.2d 1101, 1106-07 (D.Nev.2006); Senftle v. Landau, 390 F.Supp.2d 463, 473 (D.Md. 2005); cf. Turner v. Shenandoah Legal Group, No. 3:06CV045, 2006 WL 1685698 (E.D.Va. June 12, 2006). Thus, even if defendant Mecca was a "debt collector," see 15 U.S.C. § 1692a(6), and his June 11, 2007, letter (#104 Campbell Aff. Ex. 3 Att.) was a "communication," see 15 U.S.C. § 1692a(2), defendant Mecca's letter was not the "initial communication" about the collection of the debt which would trigger the validation notice requirements of 15 U.S.C. § 1692g(a). The initial communication was provided by defendant CBJC on November 9, 2006 (Paradis Aff. Ex. 4; #104 Campbell Aff. Ex. 3 Att.) which included the validation notice language required by 15 U.S.C. § 1692g(a).

Accordingly, because plaintiffs' motion for leave to amend is untimely and the proposed amendment would be futile, plaintiffs' motion is denied.

Plaintiffs' Motion for Partial Summary Judgment and Defendants' Motions to Strike

On the date plaintiffs filed their motion for leave to amend their complaint, they filed a motion for partial summary judgment

against the Defendant Christopher D. Mecca under Count Four of Plaintiffs' proposed Second Amended Complaint, for the violation of 15 U.S.C. 1692g .... for the reason that the Defendant Christopher Mecca failed to provide the notice of debt required by 15 U.S.C. § 1692g(a) within five (5) days of his initial communication with the Plaintiffs on his attempt to collect upon the RVMC account on behalf of his client, Defendant CBJC.

(Pls. Mot. for Partial Summ. J. at 1-2 (footnote omitted).) Defendants subsequently filed motions to strike portions of plaintiffs' amended concise statement of material facts filed in support of their motion for partial summary judgment.

Because plaintiffs' motion addresses a claim that is not at issue but was included in a proposed second amendment complaint, which the court has not allowed, plaintiffs' motion for partial summary judgment and the related motions to strike filed by defendants are moot.

Defendants' Motions for Summary Judgment

A. Factual Background

Construing the facts in the light most favorable to the non-movant, a review of the record reveals the following:

Plaintiffs' son was injured when he fell off the back of an ATV being driven by his father, plaintiff Michael McNall, at their Prospect property. Plaintiffs' son suffered a head abrasion. Plaintiffs called 9-1-1 and met the paramedics in Shady Cove. Because paramedics thought that plaintiffs' son had high blood pressure, he was transported by helicopter to Rogue Valley Medical Center (RVMC) where he was treated. Plaintiffs accompanied their son to RVMC where they were told that their son was dropped when he was being transferred from the helicopter board onto a gurney.

RVMC sent an invoice to plaintiffs dated May 29, 2006. Plaintiff Michael McNall sought additional information concerning the invoice from RVMC Billings and Records Department by telephone and letter dated July 14, 2006, including any and all documentation pertaining to the hospital stay of their son, an explanation of a number of terms contained in the invoice, and identification of hospital personnel at the time their son was received at RVMC. In follow-up letters dated August 17, 2006, and September 20, 2006, to RVMC Billings and Records Department, plaintiff Michael McNall notified RVMC that they had not received any of the information requested and, until the information was received, the bill would not be paid. According to plaintiff Michael McNall, he never received any response from RVMC to his letters.

On September 20, 2006, plaintiffs sent a letter to three credit reporting agencies— Equifax, Experian, and Trans Union—advising them that they fully disputed the billing from RVMC Billing Department...