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.
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
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.
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.
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
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 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 ...