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Michael Durthaler v. Accounts Receivable Management

October 20, 2011

MICHAEL DURTHALER, PLAINTIFF,
v.
ACCOUNTS RECEIVABLE MANAGEMENT, INC., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Kemp

JUDGE EDMUND A. SARGUS, JR.

OPINION AND ORDER

Plaintiff Michael Durthaler brought this action against Defendant Accounts Receivable Performance Management, Inc. alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§1692 et seq. ("FDCPA"). Mr. Durthaler filed a motion to amend the complaint, which has been briefed by the parties. For the reasons that follow, the motion will be granted in part and denied in part.

I. Background

Plaintiff filed this action on November 29, 2010. On April 13, 2011, the Court issued a Scheduling Order providing that "[a]ny motion to amend the pleadings or to join parties shall be filed by April 22, 2011."

The parties propounded discovery requests upon one another and served responses to those discovery requests. On July 18, 2011, in response to one of the discovery requests, Defendant provided voicemail recordings to Mr. Durthaler relating to the alleged debt. According to Mr. Durthaler's motion, "some of the messages reveal that Defendant's collector(s) would call Plaintiff without providing the disclosures required by 15 U.S.C. §1692e(11) otherwise known as the 'Mini-Miranda'. . . [and] the voicemails confirm that Defendant failed to provide written notice required by §1692g in the proper time frame." (See Doc. # 15 at 2.) On July 27, 2011, approximately three months after the deadline for motions to amend the pleadings, Mr. Durthaler filed a motion for leave to file an amended complaint. That motion was denied without prejudice for failure to comply with the Local Rules of Court. On August 1, 2011, he re-filed his motion with a certificate of compliance with the Local Rules.

The initial complaint alleges that Defendant violated §1692d and, specifically, §1692d(5). The proposed amended complaint seeks to allege additional facts and also to allege violations of three additional sections of the FDCPA. The new allegations may be summarized as follows:

* First, Mr. Durthaler seeks to add a claim that Defendant violated §1692c(b) "by contacting unauthorized third parties without the prior consent of the consumer . . ." (Doc. # 15-1 at ¶ 23(a).) This is supported by new allegations that Defendant placed calls to Mr. Durthaler's roommate at a telephone number that did not belong to Mr. Durthaler, that Mr. Durthaler informed Defendant that the number did not belong to him and asked Defendant to stop calling that number, that Defendant again called the number on October 5, 2010, and that Mr. Durthaler then called Defendant a second time to demand that the calls to that number cease. (Id. at ¶¶ 13-16.)

* Second, he seeks to add an allegation setting forth the dates and times of specific calls made by Defendants as further support for his §1692d claim. (Doc. # 15-1 at ¶ 12.) He also seeks to change two paragraphs so that instead of alleging that Defendant started constantly calling him in July of 2010, he would allege that Defendant began that conduct in "July or August of 2010," and instead of alleging that Defendant contacted him "virtually every day," he would allege that Defendant did so "multiple days per week." (Id. at ¶¶ 10-11.)

* Third, he seeks to add a claim that Defendant violated §1692g by failing to send him a written notice within five days of its initial communication with him. (Doc. # 15-1 at ¶ 23(d).) This is supported by new allegations that Defendant's "Dunning Letter" was returned to Defendant, that Defendant admitted it had the wrong address in its system, and that it did not resend a collection letter until more than five days after calling Mr. Durthaler to try to collect a debt. (Id. at ¶¶ 17-20.)

* Fourth, he seeks to add a claim that Defendant violated §1692e(11) by failing to disclose in subsequent communications that the communication was from a debt collector. (Doc. # 15-1 at ¶ 23(e).) In conjunction with this allegation, he adds new allegations of two specific dates upon which Defendant left a voicemail for Mr. Durthaler without indicating that it was attempting to collect a debt. (Id. at ¶¶ 21-22.)

Pursuant to the Scheduling Order, discovery was due to be completed on September 30, 2011 and dispositive motions are due on November 15, 2011. No trial date has been set.

II. Standard

Although motions to amend are evaluated under the standards in Fed. R. Civ. P. 15(a), which states that leave to amend shall be given freely when justice so requires, that rule cannot be read in isolation. Rather, as the Court of Appeals pointed out in Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003), Rules 15(a) and 16(b) must be read together. Consequently, the Court is permitted to examine the standard factors governing amendments of the complaints under Rule 15(a) only if it is satisfied that any prior date for ...


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