UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

LISA HELEN STORY, 

Plaintiff, 

v. 

MIDLAND FUNDING LLC AKA 

MIDLAND FUNDING NCC-2 CORP., 

MIDLAND CREDIT MANAGEMENT 

INC., and SUTTELL, HAMMER & 

WHITE, P.S., 

Defendants. 

A COST A, Magistrate Judge: 

Introduction 

Case No. 3:15-cv-0194-AC 

OPINION AND ORDER 

Plaintiff Lisa Helen Story ("Story") brings this action against defendants Midland Funding, 

LLC, and Midland Credit Management, Inc. (collectively, "Defendants"), alleging violations of the 

Page 1 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 1 of 11
Fair Debt Collection Practices Act ("FDCPA"), 15 U.SC. § 1692-1692p.1 Story claims multiple 

violations of the FDCPA, arising from Defendants' efforts to collect on a credit-card account. 

Presently before the comi is Story's motion to file an amended complaint. (ECF No. 43.) Story 

moves to add claims under the Telephone Consumer Protection Act ("TCP A"), 47 U.S.C. § 227 and 

the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x. Story's motion to file an 

amended complaint is granted. 

Preliminary Procedural Matter 

Story moves to amend her complaint under Federal Rule of Civil Procedure ("Rule") 15(a). 

The court-ordered deadline for filing amended pleadings passed several months ago. Filing a motion 

after a court-ordered deadline requires modification of the scheduling order. Coleman v. Quaker 

Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). Accordingly, Story's motion must first meet the 

good-cause standard for modification of a scheduling order, as required by Rule l 6(b ). Id. Story 

never formally moved to modify the scheduling order, though she addressed the Rule 16 standard 

in her reply. ln the interest of efficiently resolving the issues, the court will exercise its discretion 

to treat Story's motion to amend her complaint as an implicit motion to modify the scheduling order. 

Procedural Background 

StoryfiledhercomplaintinFebruary 2015. During the Rule 16 conference onMay28, 2015, 

the court issued multiple case-management orders. The court set October 23, 2015 as the deadline 

for filing amended pleadings. The paiiies requested, and the court granted, multiple motions to 

extend the deadlines for discovery and dispositive motions. Neither party requested an extension 

1 Former defendant Suttell, Hammer & White, P.S. ("Suttell") is no longer a party to the 

case. 

Page 2 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 2 of 11
of the deadline for filing amended pleadings. The deadline for filing amended pleadings remains 

October 23, 2015. 

Standard 

I. Federal Rule of Civil Procedure 16 

Rule 15( a) generally allows for liberal amendment to the pleadings. Where the court-ordered 

deadline for amending pleadings has passed, Rule 16(b) governs a party's ability to file amended 

pleadings. Johnson v. Mammoth Recreations, Inc, 975 F.2d 604, 607-08 (9th Cir. 1992). A party 

who seeks to file amended pleadings after the court-ordered deadline passes must show good cause 

for modifying the court's scheduling order. FED. R. Crv. P. 16(b)(4) (2016) (requiring good cause 

and the judge's consent). In contrast to Rule l S(a)'s liberal preference for amendment, the Rule 16 

inquiry focuses on the diligence of the party seeking to modify the scheduling order. Johnson, 97 5 

F.2d at 609; see also Coleman, 232 F.3d at 1294. If the moving party was not diligent, the inquiry 

should end. Johnson, 975 F.2d at 609. Local Rule of Civil Procedure ("Local Rule") 16-3 further 

requires a party seeking to modify a scheduling order to: "(l) Show good cause why the deadlines 

should be modified. (2) Show effective prior use of time. (3) Recommend a new date for the 

deadline in question. ( 4) Show the impact of the proposed extension on other existing deadlines, 

settings, or schedules." LR 16-3. 

II. Federal Rule of Civil Procedure 15 

Under Rule 15(a), leave to amend "shall be freely given when justice so requires." FED. R. 

Crv. P. l 5(a). Courts should grant leave to amend with "extreme liberality." Eminence Capital, LLC 

v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). The court may deny leave to amend "where 

the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue 

Page 3 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 3 of 11
delay in litigation; or ( 4) is futile." AmerisourceBergen Corp. v. Dialysist W, Inc., 465 F .3d 946, 

951 (9th Cir. 2006), quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999). 

Analysis 

Story moves to file an amended complaint, pursuant to Rule 15(a). Defendants oppose 

Story's motion as untimely, prejudicial, futile, and non-compliant with this court's local rules. In 

reply, Story contends she has good cause for filing a motion to amend after the amended pleadings 

deadline, she complied with local rules, and her proposed amended complaint is not prejudicial or 

futile. Story does not address this circuit's precedent governing untimely motions to amend the 

pleadings; although she generally argues good cause exists, she does so without citing any authority. 

Consequently, the court will independently analyze whether Story demonstrates good cause for 

modifying the scheduling order under this circuit's precedent. If good cause exists, Story must also 

satisfy Rule 15(a). Johnson, 975 F.2d at 608. 

I. Proposed Claims. 

Story seeks to add two additional claims to her complaint. Sto1y's first proposed claim 

alleges violations of the TCP A, arising from Defendants' use of an automatic dialing system to call 

her cellular phone. Story alleges she was unable to assert TCP A claims before receiving discovery 

from Defendants. Story's second proposed claim alleges violations of the FCRA, stemming from 

Defendants' response to a dispute Story filed with a credit reporting agency. Again, Story states she 

was unable to assert FCRA claims before receiving discovery from Defendants. Story represents that 

she received discovery substantiating her proposed claims in late February and early March 2016. 

///// 

///// 

Page 4 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 4 of 11
IL Good cause under Rule 16. 

Story's motion first requires the court to determine whether good cause exists for modifying 

the court-ordered deadline for filing amended pleadings. To show good cause, Story must establish 

her diligence. Johnson, 97 5 F .2d at 609. There is no standard formulation for the diligence inquiry. 

Courts may properly consider a party's diligence at any point in the proceedings, such as "before the 

deadline for amendments, between the deadline and the motion to amend, between the discovery of 

new information and the motion to amend, or in all of these time frames." Aldan v. World Corp., 

267 F.R.D. 346, 356-57 (D. N. Mar. I. 2010) (collecting cases and concluding that the diligence 

determination is "case-specific"). The court has "broad discretion" in determining whether good 

cause is present under the circumstances of an individual case. C.F. ex rel. Farman v. Capistrano 

Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011), quoting Johnson, 975 F.2d at 608. 

A. Discovery of New Information 

Story primarily argues good cause exists because her proposed claims are based on newly 

discovered information. Discovery of new information after the deadline for amended pleadings 

passes is a potential basis for good cause to modify the scheduling order. See Fru-Con Const. Corp. 

v. Sacramento Mun. Util. Dist., No. Civ. S-05-583 LKK/GGH, 2006 WL 3733815, at *5 (E.D. Cal. 

Dec. 15, 2006) ("Allowing parties to amend based on information learned through discovery is 

common and well established" under Rule 16.). Story represents she did not have sufficient 

information to allege either claim until she received records allegedly showing autodialed calls to 

Story's cellular phone and internal records reflecting Midland's response to Story's credit report 

dispute. But new information alone is not good cause for modifying a scheduling order. A party 

must also show diligence in seeking amendment of the scheduling order. Aldan, 267 F.R.D. at 

Page 5 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 5 of 11
356-57. 

Ideally, a party will move to amend within weeks of learning new information. See Rants 

v. WHPacific Inc., No. Cl0-5273 RBL, 2010 WL 4622164, at *2 (W.D. Wash. Nov. 4, 2010) 

(motion filed less than two weeks after learning new information); Navarro v. Eskanos & Adler, No. 

C 06-2231WHA,2006 WL 3533039, at *2 (N.D. Cal. Dec. 7, 2006) (motion filed two weeks after 

learning new information). A longer delay can still be consistent with diligence, depending on the 

circumstances of the delay. Aldan, 267 F.R.D. at 358 (a delay of one-and-a-half months still diligent 

when delay included winter holidays). Delay based on attempts to avoid "unnecessary time and 

expense," such as pursuing settlement and avoiding unnecessary motions practice, is consistent with 

diligence. Id at 358. 

Here, Story explains the delay as a result of ongoing settlement negotiations and seeking 

Defendants' stipulation to amendment. Her three-month delay reflects attempts to conserve judicial 

resources and promote settlement-the type of conduct endorsed inAldan. See id During the three 

months between receiving new information in discovery and moving to amend, Story acted to 

resolve her claims without unnecessary expense or motions practice. She promptly notified 

Defendants of her proposed claims, prepared a demand letter Defendants requested, and engaged in 

protracted negotiations on settlement and stipulation. While a three-month delay might facially 

indicate a lack of diligence, Story's conduct during those three months shows diligent and judicious 

prosecution of her case. Id ("[W]hat appears, at first blush on a 'dry' record, to be a lack of 

diligence, appears, on consideration of the realities of this litigation, to be a more judicious decision 

about allocating or saving resources.") Story therefore shows good cause for filing an amended 

complaint after the court-ordered deadline for amended pleadings. 

Page 6 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 6 of 11
B. Local Rule 16-3 

Story did not address Local Rule 16-3 in her motion. Her general arguments for good cause 

in her reply nonetheless address the requirements of Local Rule 16-3, specifically: demonstrating 

good cause, showing "effective use of prior time," recornrnending a new deadline, and addressing 

the effects of a new deadline "on other existing deadlines, settings, or schedules." LR 16-3. As 

discussed above, Story demonstrates good cause for modifying the amended pleadings deadline. 

Story also shows effective use of prior time - Story has actively prosecuted her case, engaged in 

discovery, and pursued settlement. She implicitly seeks to extend the amended pleadings deadline 

to the date of her motion. Finally, Story represents that allowing an amended complaint would not 

significantly extend the deadline for discovery and dispositive motions. Story therefore meets the 

requirements of Local Rule 16-3. 

In sum, Story shows good cause for modification of the scheduling order. Story sought leave 

to amend based on new information, and was diligent in seeking stipulation and settlement in the 

time between receiving new information and moving to amend her complaint. Accordingly, the next 

issue is whether Story meets the liberal standard for amendment under Rule 15. 

III. Leave to Amend under Rule 15(a). 

Defendants also ask the court to deny Story leave to amend under Rule 15(a), arguing the 

amendments were unduly delayed, prejudicial, and futile. Story contends her motion is proper under 

Rule 15(a). 

A. Undue Delay 

Defendants first argue Story's amendments were unduly delayed because she knew about 

Defendants' phone calls and her own credit report dispute at the time of filing, but did not include 

Page 7 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 7 of 11
TCP A or FCRA claims in her original complaint. Story replies that she did not have a sufficient 

basis for alleging her new claims until she received new information during discovery. Undue delay 

arises if a pmiy seeks to add a claim known to the party prior to initiating the action. Jackson v. 

Bank of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990). Extensive and unjustified delay between 

learning new information and seeking leave to amend also creates undue delay. AmerisourceBergen, 

465 F.3d at 952-53. Neither circumstance is present here. 

Both of Story's proposed claims stem from information she received during discovery. 

Alleging new claims based on new information does not cause undue delay, even if some of the facts 

underlying the new claims were available to Story when she filed her initial complaint. See Pumpco, 

Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 669 (D. Colo. 2001) (finding no undue delay where a 

paiiy waited to add claims until receiving substantiating discove1y). Story's delay between lemning 

new information and seeking leave to ainend did not create undue delay. Cf AmerisourceBergen, 

465 F.3d at 953 (finding fifteen months as undue delay); Jackson, 902 F.2d at 1388 (eight-month 

delay). In any event, Story sufficiently explains her delay. As discussed above, the delay between 

Story learning new information and moving to amend was due to extended negotiations with 

Defendants. Story therefore did not unduly delay in moving to ainend her complaint. 

B. Prejudice 

Defendants suggest the length of Story's delay alone is prejudicial. The court rejects this 

argument on the same grounds as Defendants' undue delay argument. Defendants also argue 

allowing amendment would create prejudice by extending discovery. The need for additional 

discovery alone does not establish undue prejudice. Genentech, Inc. v. Abbott Lab., 127 F.R.D. 529, 

530-31 (N.D. Cal. 1989). Moreover, the pmiies continue to seek extensions of the discovery 

Page 8 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 8 of 11
deadline, most recently to November 14, 2016. The court also extended the dispositive motion 

deadline to December 14, 2016. Story represents she will likely not seek significantly more 

discovery based on her proposed claims, as her additional claims relate to the same course of events 

as her original FDCP A claims. Thus, any need for extending the discovery and dispositive motions 

deadlines will likely be minimal. Based on these circumstances, Defendants fail to establish 

prejudice. 

C. Futility 

Defendants also argue Story's proposed FCRA claim is futile because it is time-barred. 2 

Story contends her FCRA claim is nottime-barred because she did not discover her claim until 2016, 

and in any event her FCRA claim relates back to the original complaint. Under Rule 15( c ), a claim 

added by amendment "relates back to the date of the original pleading" if the new claim "ar[ises] out 

of the conduct, transaction, or occurrence set out ... in the original pleading." FED. R. C!V. P. l 5(c). 

An amended claim arises from the same transaction or occurrence as the original complaint if the 

claim and complaint share "a common nucleus of operative facts." ASARCO, LLC v. Union Pac. 

R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014), quoting Martell v. Trilogy Ltd., 872 F.2d 322, 325 (9th 

Cir. 1989). "Rule 15 does not require that a pleading give notice of the exact scope of the relief 

sought. . . . So long as a party is notified of litigation concerning a particular transaction or 

occurrence, that party has been given all the notice that Rule 15 requires." ASARCO, 765 F.3d at 

1006. Defendants concede Story's FCRA claim would not have been time-barred if asserted in the 

original complaint, but argue the FCRA claim does not relate back because the original FDCP A 

claims involve different elements of proof. This argument incorrectly characterizes Rule 15( c ). 

2 Defendants do not argue Story's TCP A claims are futile. 

Page 9 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 9 of 11
The relation-back doctrine does not require commonality between the elements of amended 

and original claims. Story's new claims relate back so long as they arise from events or conduct put 

at issue in the original pleading- even if the original complaint did not allege claims based on those 

specific facts. ASARCO, 765 F.3d at 1006 (claims relate back even if the original complaint 

disclaimed liability as to the facts underlying the new claims). Once a plaintiff places specific events 

or actions at issue, the defendant has notice "that the whole transaction described in it will be fully 

sifted," potentially uncovering new causes of action. Martell, 872 F.2d at 326, quoting Barthell v. 

Stamm, 145 F.2d 487, 491 (5th Cir. 1944). In her original complaint, Story placed at issue 

Defendants' attempts to collect on the allegedly fraudulent account and their responses to her 

objections to the validity of the debt. Her new claims -based on aspects of Defendants attempts 

and responses - relate back to the date of filing. Accordingly, St01y' s FCRA claim is timely under 

the relation-back doctrine. The court therefore does not need to determine whether Story's FCRA 

claim would be timely if filed now. 

D. Local Rule 15-1 

Defendants argue St01y did not comply with Local Rule 15-1 because she did not include a 

"red-lined copy" showing changes to the original complaint or identify added or altered paragraphs. 

Local Rule 15-1 requires that "any party moving to file an amended ... pleading must describe the 

proposed changes." LR 15-1 ( c ). Story explains the factual and legal basis for her proposed 

amendments in her motion. Local Rule 15-1( c) does not require a red-lined copy or identification 

of changes by paragraph. Story's motion therefore complied with Local Rule 15-1. 

I II I I 

/II II 

Page 10 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 10 of 11
Conclusion 

For the reasons stated above, Story's motion for leave for file an amended complaint (ECF 

No. 43) is GRANTED. Story's First Amended Complaint must be filed within 14 days of this 

decision. 

IT IS SO ORDERED. 

DATED this~fOctober, 2016. 

Page 11 - OPINION AND ORDER [TJP] 

Case 3:15-cv-00194-AC Document 74 Filed 10/07/16 Page 11 of 11