Hendrickson v. Fifth Third Bank

Background

Kelley L. Hendrickson alleged that she obtained an automobile loan from Fifth Third Bank, made five late payments that the bank accepted, and was told that the car would not be repossessed as long as she continued making payments. She alleged that 11th Hour Recovery, Inc., repossessed the car without advance notice. Her lawsuit asserted claims involving federal debt collection law, conversion, and Minnesota Statutes section 336.9-609.

Hendrickson moved for leave to amend her complaint to convert her individual lawsuit into a putative class action and to add ten “John Doe Repossession Agencies” as defendants. Fifth Third Bank opposed the amendment, arguing undue prejudice and futility. It also asked that, if amendment were allowed, this case be consolidated with a related class action, Sampson et al. v. Fifth Third Bank, No. 18-cv-1622 (D. Minn.).

Fifth Third Bank separately sought a protective order concerning discovery requests about its repossession notices, policies, procedures, prior repossessions, and related complaints and lawsuits.

Motion to Amend

The court applied Federal Rule of Civil Procedure 15, which generally permits amendment with the court’s permission when justice requires. Because Hendrickson moved within the deadline in the amended scheduling order, the court did not require the more demanding showing of good cause applicable to amendments filed after a scheduling deadline.

The court rejected the defendants’ prejudice arguments. Potential additional expense from class-related litigation could be addressed through consolidation or coordination under Federal Rule of Civil Procedure 42. The possible delay caused by adding the unidentified defendants was not, by itself, enough to establish unfair prejudice. The court also found that the defendants’ concerns about Hendrickson’s adequacy as a class representative should be addressed during a later class-certification proceeding, after discovery and any decision about consolidation, rather than through the amendment motion.

The court declined to consolidate this case with Sampson at that stage. It held that the first-to-file rule did not apply because both cases were filed in the same district and assigned to the same judge. The court also concluded that consolidation should not be ordered before the parties in Sampson had an opportunity to be heard. It encouraged the parties in both cases to discuss coordination or consolidation and noted that any party could later file an appropriate motion.

Protective Order

The court identified Interrogatories 18, 19, and 20 and Request for Admission 11 as relating to Hendrickson’s proposed class claims. Those requests sought information about other vehicle repossessions and the notices provided to other borrowers. The court found that this information could be relevant to class-certification issues such as the number of affected people, whether Hendrickson’s claims were typical, and whether the cases shared common questions.

Because the court granted leave to amend, it denied the protective order as to those class-related requests but stayed discovery on them. The stay would remain in place until the District Judge decided the pending motions for judgment on the pleadings. The court explained that the stay would help prevent class discovery in this case from outpacing related efforts in Sampson and would reduce the risk of duplicative discovery.

The remaining disputed requests concerned Fifth Third Bank’s communications and repossession policies, related lawsuits, and Minnesota law. The court explained that internal policies do not themselves create enforceable rights or establish the legal standard of conduct, but that discovery is broader than the evidence ultimately admissible at trial. Because the requested information could lead to evidence about whether Hendrickson received legally sufficient notice, the court denied the protective order as to Interrogatories 10, 11, and 13 through 15, Requests for Admission 12 and 13, and Requests for Production 9 and 12.

Disposition

The court ordered that Hendrickson’s Motion for Leave to File Amended Complaint was GRANTED and directed her to file the amended complaint within seven days. Fifth Third Bank’s Motion for Protective Order was DENIED. Discovery relating to Interrogatories 18, 19, and 20 and Request for Admission 11 was STAYED until the pending motions for judgment on the pleadings were decided. The court stated that all prior consistent orders remained in effect.