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Friend v. Taylor Law, PLLC

United States District Court, N.D. Indiana, Hammond Division, Lafayette

December 11, 2017

RUSSELL FRIEND, Plaintiff,
v.
TAYLOR LAW, PLLC, Defendant.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE.

         This matter is before the Court on a Motion for Leave to Amend Answer to Plaintiff’s Amended Complaint [DE 17], filed by Defendant Taylor Law, PLLC on November 17, 2017. Plaintiff Russell Friend filed a response in December 1, 2017, and Defendant filed a reply on December 8, 2017.

         BACKGROUND

         On April 14, 2017, Plaintiff filed this lawsuit seeking a preliminary injunction and permanent injunctive relief, a declaratory judgment, actual damages, statutory damages, attorney fees, and costs for violations of the Fair Debt Collection Practices Act. On May 15, 2017, Plaintiff amended his complaint to add a claim under the Telephone Consumer Protection Act. Defendant filed an Answer on June 21, 2017.

         On July 20, 2017, the Court held a telephonic preliminary pretrial conference, setting the deadline of September 22, 2017, to file any motion to amend the pleadings.

         On November 15, 2017, Plaintiff’s counsel emailed a copy of Plaintiff’s discovery responses to Defendant’s counsel. Having reviewed those discovery responses, Defendant now seeks leave of Court, pursuant to Federal Rule of Civil Procedure 15, to amend its Answer to include applicable affirmative defenses.

         ANALYSIS

         Defendant attached to the instant motion a copy of the proposed Amended Answer as required by Local Rule 15-1(a). However, the motion itself does not identify the amendments or argue why they should be permitted. A comparison of the June 21, 2017 Answer and the proposed Amended Answer demonstrate that the proposed amendments are the following four affirmative defenses:

1. Plaintiff has failed to state a claim upon which relief can be granted.
2. Plaintiff’s claims may be barred by the statute of limitations.
3. Any violation of law, which is specifically denied, was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
4. Plaintiff failed to mitigate any damages which he may have suffered.

(ECF 17-1, p. 20). Plaintiff objects to the motion on several grounds. In its reply brief, Defendant withdraws the proposed first affirmative defense, and, on this basis, the Court denies the Motion to Amend as to the proposed first affirmative defense. The Court considers in turn each of Plaintiff’s arguments in relation to the remaining three affirmative defenses.

         First, Plaintiff argues that Defendant has failed to show excusable neglect under Federal Rule of Civil Procedure 6(b) for filing the motion after the September 22, 2017 deadline, and has failed to show good cause for modifying the Court’s scheduling order under Federal Rule of Civil Procedure 16(b). Because the Court-ordered deadline for seeking leave to amend pleadings has expired, whether to allow the proposed amendment is evaluated under Federal Rule of Civil Procedure 16(b). Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005). Federal Rule of Civil Procedure 16(b) provides that “[a] schedule may be modified only for good ...


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