Christine Baker v. FICO

[David A. Szwak]

Slip Copy, 2006 WL 1371624 (D.Ariz.)

United States District Court,
D. Arizona.
Christine BAKER, Plaintiff,
v.
FAIR ISAAC AND COMPANY, et al., Defendants.
No. CIV 03-525-PCT RCB.
May 16, 2006.
Christine Baker, Meadview, AZ, pro se.
Brian Joseph Palmer, Jared G. Parker, Rodrick Joseph Coffey, Stinson Morrison Hecker LLP, Phoenix, AZ, for Defendants.


ORDER

ROBERT C. BROOMFIELD, District Judge.
I. Introduction
*1 On February 14, 2006, Defendant Verizon Wireless ("Verizon") filed a motion for summary judgment on all of Plaintiff Christine Baker's ("Baker") claims against it. Mot. (doc. 237). Thereafter, on March 15, 2006, Baker filed a motion requesting leave to file a First Amended Complaint. Mot. for Leave (doc. 248). These motions were both fully briefed on April 5, 2006. P. Reply (doc. 266). [FN1] This Court, having carefully considered all the arguments presented by the parties, now rules.


FN1. Oral argument is requested by at least one of the parties on each of these motions. Finding oral argument unnecessary, the Court shall deny such requests.


II. Background Facts
On March 19, 2003, Baker brought various claims against twenty-seven defendants, including Verizon. Complt. (doc. 1). When Baker initially filed her Complaint, it was unclear exactly what claims she was asserting against Verizon. D. Resp. (doc. 257) at 2. Accordingly, Verizon served Baker with Interrogatories in which it asked Baker to list each cause of action she was asserting against Verizon. Id. at 2-3. In response, Baker stated that "Verizon committed fraud and attempted to extort monies NOT owed[.]" Exbt. A (doc. 257) at 1. Based on this response, Verizon filed a motion for summary judgment on the "fraud" and "extortion" claims. D. Resp. (doc. 257) at 3. Verizon's motion primarily asserts that the Court lacks subject matter jurisdiction over Baker's fraud and "extortion" claims; and, even if the Court had jurisdiction, Verizon would nevertheless be entitled to judgment as a matter of law. Mot. (doc. 237).
About a month after Verizon filed its motion for summary judgment, Baker filed a motion requesting leave to file an amended complaint. Mot. for Leave (doc. 248). Baker seeks to amend her Complaint by removing the parties that have already been dismissed from this lawsuit, and adding new claims against Defendants Experian and ConsumerInfo.com. Id. at 1-2. In addition, Baker seeks to add claims against Verizon for negligence and gross negligence, and claims under the Fair Debt Collection Practices Act ("FDCPA"). Id. at 2, 10.
...
III. Discussion
A. Baker's Motion for Leave to File First Amended Complaint
Rule 15 states that leave shall be freely given to amend a complaint when justice so requires. Fed.R.Civ.P. 15. A plaintiff should be granted the freedom to amend their complaint unless the opposing party can show prejudice, bad faith, or undue delay. Forman v. Davis, 371 U.S. 178, 182 (1962). However, if the plaintiff's amendments would be futile, the court may, in its discretion, deny the Motion to Amend. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.2004).
Here, Verizon asserts that Baker's motion to amend should be denied. D. Resp. (doc. 257). At the outset, Verizon argues that Baker's proposed amendments against it are futile. Id. at 4-9. First, Verizon asserts that it cannot be held liable under the FDCPA because (1) it is not a "debt collector" as defined by the statute; and (2) the relevant letters used as the basis for Baker's claim were sent by third-parties. Id. at 4-5. Second, Verizon argues that Baker lacks standing to assert claims under the FDCPA, because the relevant letters used as the basis for her claim were not addressed to her; thus, she is not a "consumer" as defined by the statute. Id. at 5-6. Third, Verizon maintains that Baker's claims are barred by the statute of limitations. Id. at 6. Fourth, Verizon argues that the Court lacks jurisdiction over Baker's "negligence" claims, because Baker is seeking only $25,000 in damages. D. Resp. (doc. 257) at 6-7. Fifth, Verizon contends that Baker's "negligence" claims fail to state a claim. Id. at 7-9.
*2 In addition, Verizon argues that Baker's motion for leave to amend her complaint should be denied, because her undue delay prejudices Verizon and the motion is made in bad faith. Id. at 9-12. Lastly, Verizon asserts that the Court should deny Baker's motion, because it fails to comply with Local Rule 15(C). Id. at 12-13.
Baker fails to respond to any of Verizon's arguments, except for the allegations that her motion was made in bad faith and failed to comply with Local Rule 15(C). P. Reply (doc. 266). In explanation of her failure to respond to Verizon's other arguments, Baker states,
... [m]ost of Verizon's 14 page filing would be more appropriate in a motion to dismiss and Plaintiff will not argue her claims in this Reply. Verizon is free to file a motion to dismiss or a motion for summary judgment after the First Amended Complaint has been filed, giving Plaintiff sufficient time to respond appropriately.
P. Reply (doc. 266) at 3. The Court finds Baker's postponement of her response to Verizon's arguments regarding futility and undue delay to be detrimental to her motion.
Baker's motion to amend is filed three years after she filed her original Complaint. Her request comes after Verizon filed its motion for summary judgment and after discovery began between the parties. However, Baker's motion and proposed First Amended Complaint contain no newly discovered information or argument that explains such a delay. The Ninth Circuit has noted that "a district court does not 'abuse its discretion in denying a motion to amend a complaint ... when the movant presented no new facts but only 'new theories' and 'provided no satisfactory explanation for his failure to fully develop his contentions originally.' " Nunes, 375 F.3d at 808.
Moreover, in the absence of any counter argument by Baker, the Court finds Verizon's contentions concerning the futility of Baker's proposed additional claims to be convincing. "Futility alone can justify the denial of a motion for leave to amend." Id. Thus, the Court shall deny Baker's motion to amend in regard to her additional proposed claims against Verizon.
B. Verizon's Motion for Summary Judgment
1. Standard of Review
To grant summary judgment, the court must determine that the record before it contains "no genuine issue as to any material fact" and, thus, "that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether to grant summary judgment, the court will view the facts and inferences from these facts in the light most favorable to the nonmoving party. See Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A material fact is any factual dispute that might affect the outcome of the case under the governing substantive law. Id. at 248. A factual dispute is genuine if the evidence is such that a reasonable jury could resolve the dispute in favor of the nonmoving party. Id.
*3 A party opposing a motion for summary judgment cannot rest upon mere allegations or denials in the pleadings or papers, but instead must set forth specific facts demonstrating a genuine issue for trial. See id. at 250. Finally, if the nonmoving party's evidence is merely colorable or is not significantly probative, a court may grant summary judgment. See, e.g., California Architectural Build. Prods., Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987).
2. Analysis
Verizon argues that summary judgment should be granted in its favor on all of Baker's claims against Verison. Mot. (doc. 237) at 1-2. First, Verizon asserts that, because Baker failed to timely respond to its requests for admission, she automatically admits numerous statements that indicate that she was not wronged or damaged by Verizon. Id. at 2-5. Second, Verizon asserts that, under 28 U.S.C. § 1332, this Court lacks subject matter jurisdiction over Baker's claims. Id. at 5. Specifically, Verizon notes that Baker admitted in her answers to its interrogatories that she is only seeking to recover compensatory damages in the amount of $25,000; thus, failing to reach the requisite amount of over $75,000. Id. at 5-6. Additionally, Verizon notes that Baker has failed to raise any claims that would give rise to federal question jurisdiction under 28 U.S.C. § 1331. Id. at 6-7. Third, Verizon asserts that Baker has failed to state a valid fraud claim, as she has not alleged sufficient facts to satisfy the elements of such a claim. Mot. (doc. 237) 7-9. Fourth, Verizon contends that Baker's "extortion" claim is not a cognizable claim, as Baker fails to cite any federal or state authority as a source for her claim. Id. at 9. Verizon notes that Arizona does not recognize a common law civil cause of action for extortion, nor does a statute exist. Id. at 10. Fifth, Verizon asserts that the damages for "mental anguish" and "loss of income" that Baker seeks are not recoverable in fraud. Id. at 10-11. Finally, Verizon requests an award of reasonable attorney's fees and costs incurred in defending this claim. Id. at 12.
In her response, Baker fails to respond to any of Verizon's arguments, except for the issues regarding her admissions and Verizon's request for fees. P. Resp. (doc. 251). Although Baker admits that her responses to Verizon's request for admissions were filed one day after the deadline, she requests that the Court allow her to withdraw the admissions. Id. at 1, 2-3. In any event, Baker makes no arguments in opposition to Verizon's assertions concerning the viability of Baker's fraud and "extortion" claims, and the Court's jurisdiction over them. Instead, Baker argues that the Court retains jurisdiction over the "FDCPA claims" that she added in her proposed First Amended Complaint. Id. at 6-7.
A party opposing a motion for summary judgment cannot rest upon mere allegations or denials in the pleadings or papers, but instead must set forth specific facts demonstrating a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party's evidence is merely colorable or is not significantly probative, a court may grant summary judgment. See, e.g., California Architectural Build. Prods., Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987). Thus, the Court shall grant Verizon's motion for summary judgment on Baker's fraud and "extortion" claims. However, the Court shall deny the motion in regard to Verizon's request for attorney's fees, as the request was not properly filed in accordance with Local Rule 54.2.
*4 Therefore,
IT IS ORDERED that Baker's motion requesting leave to file a First Amended Complaint (doc. 248) is DENIED in regard to her additional proposed claims against Verizon.
IT IS FURTHER ORDERED that Verizon's motion for summary judgment (doc. 237) is GRANTED in part and DENIED in part. It is denied as to Verizon's request for attorney's fees but granted in all other respects.
D.Ariz.,2006.
Baker v. Fair Isaac and Co.
Slip Copy, 2006 WL 1371624 (D.Ariz.)