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Childress v. Liberty Mutual Insurance Co.

United States District Court, D. New Mexico

May 1, 2018



         THIS MATTER comes before the Court on Plaintiff's Motion for Leave to File Second Amended Complaint (Doc. 17), filed December 8, 2017, and fully briefed February 6, 2018 (Docs. 23, 26). On January 29, 2018, the Honorable Martha Vazquez referred this motion to me for a recommended disposition. Doc. 25. Having reviewed the Motion, the proposed Second Amended Complaint, Defendant's Response in Opposition, and having conducted oral arguments, the Court finds that the proposed amendment presents significant changes to the original complaint such that it would introduce undue delay and unduly burden Defendant. Thus, the Court will recommend denial of the Motion.

         I. Background

         Plaintiff first filed his pro se Complaint for Violations of the Telephone Consumer Protection Act, the Unfair Practices Act and Torts in state court on August 14, 2017. That filing came just over one hour after Plaintiff allegedly received the offending telephone call that is at issue in this case. Plaintiff amended the complaint once as a matter of course on September 13, 2017, to correctly name the Defendant and to add conduct by “lead generators” for his claim of vicarious liability. Defendant removed the case to this federal district court on October 19, 2017.

         Plaintiff Sid Childress is an attorney practicing in the field of real estate, business-to-business debt collection, probate, trust and estate disputes, and consumer protection. Doc. 23-1. He specializes in suing “telemarketers who unlawfully robocall and auto-dial cell phones, thereby harassing many people every day and willfully invading their privacy in violation of the Telephone Consumer Protection Act (“TCPA”).” Doc. 23-7. Indeed, since 2016, Plaintiff has filed suit in this federal district court as Plaintiff and/or class representative in six other TCPA actions.

         The instant case arises from an alleged single prerecorded telephone call Plaintiff received on August 14, 2017 from a third-party caller identified as “Jason” from “Cheap Insurance Experts.” After listening to the prerecorded message and answering questions, Plaintiff was transferred to a live caller identified as “Steve Ross” from Liberty Mutual Insurance Company. When Plaintiff began asking the caller why he received this “robocall, ” Plaintiff alleges the call was disconnected. Plaintiff contends that his phone number was on the Federal “Do Not Call Registry” at the time and that this “robocall” violated the TCPA. Plaintiff proceeded pro se until December 7, 2017, when his current counsel entered their appearance. On December 8, 2017, Plaintiff's counsel filed the motion at issue.

         II. Standard

         Rule 15(a) of the Federal Rules of Civil Procedure provides:

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

         While Rule 15(a) encourages liberal granting of leave to amend, denying such leave may be justified upon showing of undue burden, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. Frank v. U.S. West. Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993).

         Leave to amend may also be refused on the grounds of untimeliness or undue delay. Id. Undue delay occurs where the plaintiff's amendments “make the complaint a moving target.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 1998) (quoting Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799-800 (10th Cir. 1998)). Undue delay may also occur when the plaintiff knew or should have known all of the information on which the proposed amendment is based before the filing of an earlier complaint. See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (noting that proposed amended complaint “was not based on new evidence unavailable at the time of the original filing”). “Untimeliness alone may be sufficient basis for denial of leave to amend . . . . Prejudice to the opposing party need not also be shown.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182 (10th Cir. 1990).

         III. ...

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