United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO
FILE AMENDED ANSWER
S. Lasnik, United States District Judge.
matter comes before the Court on defendant Convergent
Outsourcing, Inc.'s “Motion for Leave to File
Amended Answer.” Dkt. #20.
Jose Montes Opico alleges that defendant unlawfully attempted
to collect on a debt that he did not owe to T-Mobile in 2018.
Dkt. #1-1 (Compl.) at ¶¶ 4-15. He brought claims
alleging violations of the Fair Debt Collection Practices Act
(“FDCPA”), see 15 U.S.C. §§
1692e-1692g, the Washington Collection Agency Act,
see RCW 19.16.250, RCW 19.16.440, and the Washington
Consumer Protection Act, see RCW 19.86 et
seq. Dkt. #1-1 at ¶¶ 20-40.
Answer included seventeen affirmative defenses. Dkt. #4.
Plaintiff filed a motion to strike all of them. Dkt. #5. In
its response to the motion, defendant requested the leave of
the Court to file an Amended Answer with only ten of its
affirmative defenses, including its Third Affirmative Defense
for bona fide error. Dkt. #7 at 1; see Dkt. #7-1
(Am. Ans.) at 7. On April 19, 2019, the Court granted
defendant leave to file the Amended Answer and granted
plaintiff's motion to strike the remaining ten
affirmative defenses, including the defense for bona fide
error. Dkt. #15. Defendant now requests leave to file another
Amended Answer that asserts a single affirmative defense for
bona fide error under 15 U.S.C. § 1692k(c) of the FDCPA.
Dkt. #20; see Ex. A, Dkt. #20-1 at 6-7. Defendant
argues that it has corrected the deficiencies originally
identified by the Court by including the facts it uncovered
in its subsequent investigation. Dkt. #20 at 2.
than an amendment as a matter of course, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P. 15(a).
The Court “should freely give leave when justice so
requires.” Id. “Several factors govern
the propriety of a motion to amend: (1) undue delay, (2) bad
faith, (3) prejudice to the opponent, and (4) futility of
amendment.” Sweaney v. Ada Cty., Idaho, 119
F.3d 1385, 1392-93 (9th Cir. 1997) (citing Gabrielson v.
Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir.
consideration of prejudice to the opposing party …
carries the greatest weight.” Eminence Capital, LLC
v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)
(citing DCD Programs, Ltd. v. Leighton, 833 F.2d
183, 185 (9th Cir. 1987)). “A proposed amendment is
futile only if no set of facts can be proved under the
amendment to the pleadings that would constitute a valid and
sufficient claim or defense.” Sweaney, 119
F.3d at 1393 (quoting Miller v. Rykoff-Sexton, Inc.,
845 F.2d 209, 214 (9th Cir. 1988) (alterations omitted)).
“[The Rule] places leave to amend … within the
sound discretion of the trial court. … In exercising
this discretion, a court must be guided by the underlying
purpose of Rule 15 to facilitate decision on the merits,
rather than on the pleadings or technicalities.”
United States v. Webb, 655 F.2d 977, 979 (9th Cir.
1981) (internal citations omitted). “Accordingly, Rule
15's policy of favoring amendments to pleadings should be
applied with “‘extreme liberality.'”
Id. (quoting Rosenberg Brothers & Co. v.
Arnold, 283 F.2d 406 (9th Cir. 1960) (per curiam)).
Bona Fide Error under the FDCPA
FDCPA allows a debt collector to escape liability if it
“shows by a preponderance of evidence that the
violation was not intentional and resulted from a bona fide
error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.” 15
U.S.C.A. § 1692k(c). “[T]o qualify for the bona
fide error defense, the defendant must prove that (1) it
violated the FDCPA unintentionally; (2) the violation
resulted from a bona fide error; and (3) it maintained
procedures reasonably adapted to avoid the violation.”
McCollough v. Johnson, Rodenburg & Lauinger,
LLC, 637 F.3d 939, 948 (9th Cir. 2011). Plaintiff argues
that the defendant has still failed to properly plead its
affirmative defense. Dkt. #23 at 3. The Court disagrees.
Defendant has specified the procedures that it maintained.
Dkt. #7-1 at 6-7; see Rahman v. San Diego Accounts
Serv., No. 16CV2061-JLS (KSC), 2017 WL 1387206, at *3
(S.D. Cal. Apr. 18, 2017) (striking bona fide defense where
there were no “assertions regarding what particular
policies and procedures Defendant ha[d] in place to verify
debts, or how or when Defendant attempted to verify [the]
particular debt.”); Perez v. Gordon & Wong Law
Grp., P.C., No. 11-CV-03323-LHK, 2012 WL 1029425, at *10
(N.D. Cal. Mar. 26, 2012) (striking bona fide defense where
“Defendants fail[ed] to identify in their Answer any
actual procedures reasonably employed to prevent the alleged
FDCPA … violations”). The proposed amendment is
not futile. Sweaney, 119 F.3d at 1393. Defendant is
not required to admit to an error. Dkt. #23 at 4-5;
see Fed.R.Civ.P. 8(d)(3) (“A party may state
as many separate claims or defenses as it has, regardless of
filed this motion almost three months after the Court's
order striking all affirmative defenses. Dkt. #23;
see Dkt. #15. However, defendant argues that it
brought the motion “as soon as it was able to develop
sufficient facts to overcome the Court's concerns.”
Dkt. #20 at 5. There is no undue delay. Nor is there any
evidence of bad faith. There is no undue prejudice to
plaintiff, as the debt collection procedures utilized by
defendant and any errors committed by it are at the heart of
this dispute. The purpose of Rule 15 is to facilitate
decision on the merits, and its policy of favoring amendments
must be applied liberally. Webb, 655 F.2d at 979. In
the absence of this amendment, defendant has no affirmative
defenses. Defendant is entitled to amend its answer.
Plaintiff may file his own motion if he believes he is
prejudiced by the time available to conduct additional and
necessary discovery pertinent to the affirmative defense.
Dkt. #23 at 5.
the foregoing reasons, ...