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DESANTIS v. ROZ-BER

May 28, 1999

MICHAEL DESANTIS, PLAINTIFF,
v.
ROZ-BER, INC., T/A NEW JERSEY CREDITOR COLLECTION AGENCY, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

Michael Desantis ("Desantis" or the "plaintiff") initiated this action against Roz-Ber, Inc., T/A New Jersey Creditor Collection Agency (the "defendant") on August 13, 1998 by filing a complaint alleging one cause of action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.

Presently before the Court are: (1) the plaintiff's motion to amend the complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."); (2) the motion by the defendant for judgment on the pleadings pursuant to Rule 12(c) of the Fed.R.Civ.P.; and (3) the cross-motion by the plaintiff for judgment on the pleadings pursuant to Rule 12(c) of the Fed. R. Civ. P.

I. BACKGROUND

The following factual allegations are taken from the plaintiff's three page complaint. The defendant is a collection agency engaged in the business of collecting debts. Apparently, the plaintiff incurred a personal debt to Hann Financial Service Corporation, which in turn was referred to the defendant for collection. On May 20, 1998, the defendant sent a debt collection letter to the plaintiff which stated, in part, that:

  Your account has been placed in our hands by the
  above named client with full authority to demand
  payment.
  You may not have intentionally neglected this
  obligation, but it is seriously past due and demands
  your IMMEDIATE ATTENTION!

If you would like our cooperation then:

1. Remit payment in full to this office or,

  2. Contact the undersigned in person or by telephone
  and arrange settlement.

IMPORTANT NOTIFICATION:

  Unless you notify this office within 30 days after
  receiving this notice that you dispute the validity
  of this debt or any portion thereof, this office will
  assume this debt is valid. If you notify this office
  in writing within 30 days from receiving this notice,
  this office will: obtain verification of the debt or
  obtain a copy of a judgment and mail you a copy of
  such judgment or verification. If you request this
  office in writing within 30 days after receiving this
  notice, this office will provide you with the name
  and address of the original creditor, if different
  from the current creditor.

The plaintiff claims that this letter violated his right to dispute the debt pursuant to 15 U.S.C. § 1692g.

On February 1, 1999, the defendant was served with a motion to amend the complaint. The amended complaint seeks to add an additional violation of the FDCPA concerning the name of the collection agency, New Jersey Creditor Collection Agency, National Creditors Service. In particular, the plaintiff asserts that the name of the defendant implies that the collection agency has an affiliation with the State of New Jersey which is in violation of the FDCPA.

II. DISCUSSION

A. Motion to Amend

Rule 15(a) provides that "leave [to amend a pleading] shall be freely given when justice so requires." See also Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995); Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993). Nevertheless, leave to amend is not granted automatically or reflexively. The Supreme Court stated in Foman, its seminal amendment case, that denial of a Rule 15(a) motion may be appropriate in instances of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment. . . ." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (emphasis added); accord Zahra, 48 F.3d at 685; Block, 988 F.2d at 350; Ruffolo v. Oppenheimer & Company, 987 F.2d 129, 131 (2d Cir. 1993) (where granting leave to amend is unlikely to be productive, it is not an abuse of discretion to deny leave to amend).

On November 23, 1998, United States Magistrate Judge Viktor V. Pohorelsky issued a scheduling order setting January 15, 1999 as the deadline to file motions seeking to add additional parties and/or to amend the pleadings. The defendant was not served with the plaintiff's motion to amend the complaint until February 1, 1999. In addition, the Court notes that the motion to amend itself is dated January 28, 1999.

As previously stated, the plaintiff asserts that the name of the defendant implies that the collection agency has an affiliation with the State of New Jersey which is in violation of the FDCPA, 15 U.S.C. § 1692e(1) which states:

  The false impression or implication that the debt
  collector is vouched for, bonded by, or affiliated
  with the United States

  or any State, including the use of any badge,
  uniform, or facsimile thereof.

The defendant contends that the "use of the name `New Jersey Credit Collection Agency' in no way suggests or implies that it is affiliated with any government and the allegation that it holds itself out as being so affiliated merely by using its name is an example of imaginative lawyering."

While the Court is of the view that the plaintiff's amendment would be futile as there is no possibility that a debtor would be under the false impression that the defendant was affiliated with the State of New Jersey, there is also a more fundamental reason to deny the plaintiff's motion to amend. The Court denies the plaintiff's request to amend the complaint because he has failed to establish good cause for his violation of Judge Pohorelsky's November 23, 1998 scheduling order setting January 15, 1999 as a deadline to file a motion to amend. In fact, the plaintiff has not proffered any excuse for his delay in filing the motion to amend the complaint even though the defendant raised the issue in its memorandum of law. Moreover, the Court cannot fathom any reasonable excuse that could be offered by the plaintiff, as he was obviously in possession of the collection letter at the time he filed the original ...


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