Flores v. Forster & Garbus LLP

Background

Carlos Flores moved for permission to file a fourth amended complaint against Forster & Garbus, LLP, LVNV Funding, LLC, and ProVest LLC. His third amended complaint asserted two claims under the Fair Debt Collection Practices Act (FDCPA), a federal law regulating debt collection, against Forster & Garbus and LVNV Funding, and a common-law fraud claim against ProVest.

In an earlier order, the court dismissed the fraud claim against ProVest because Flores had not adequately pleaded fraud under the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). The court allowed Flores to seek permission to file another amended complaint. His proposed fourth amended complaint removed the fraud claim but added ProVest as a defendant to the two FDCPA claims.

Reasons for the ruling

The court applied Federal Rule of Civil Procedure 15(a)(2), which generally allows amendment with the court’s permission when justice requires. The court explained that permission may be denied when the proposed amendment would be futile. An amendment is futile when the proposed claims could not survive a motion to dismiss for failure to state a claim.

The court found the proposed FDCPA claims against ProVest futile because the proposed complaint contained almost no factual allegations against ProVest. The only allegation concerning the lawsuit was that ProVest wrote and attested to an affidavit of service. The court determined that allegation alone could not support a plausible claim for relief. The court also noted that Flores repeated allegations about ProVest’s prior alleged misconduct that the court had previously found inappropriate and ordered stricken. Because Flores had received multiple opportunities to correct the deficiencies, the court concluded that another opportunity was not warranted.

The court separately held that the FDCPA claims were untimely. The FDCPA generally requires claims to be filed within one year after the alleged violation. Assuming that Flores first received notice of the debt-collection judgment on April 18, 2019, the court found that the claims against ProVest were filed well after the deadline. The court rejected Flores’s argument that the claims should relate back to the earlier complaint under Rule 15(c). That rule can allow an amended claim changing a party’s name to use the earlier filing date when the party was omitted because of a mistake about the party’s identity. The court found no such mistake because ProVest had already been named as a defendant since October 28, 2019.

Disposition

Judge Vernon S. Broderick denied Flores’s motion for leave to file a fourth amended complaint. The court dismissed all claims against ProVest with prejudice and granted ProVest’s request to dismiss the claims with prejudice. The court declined at that time to use its authority under Federal Rule of Civil Procedure 11 to award ProVest attorneys’ fees and costs, while noting that ProVest could file a separate sanctions motion. The court directed Forster & Garbus and LVNV Funding to answer or otherwise respond to the third amended complaint within 21 days.