Ortiz-De Lozano v. N.A.R., Inc.

• Court: District Court, D. Nevada
• Decided: November 30, 2021
• Docket: 2:21-cv-01774
• Status: Unknown

Opinion

1 COGBURN LAW Jamie S. Cogburn, Esq. 2 Nevada Bar No. 8409 jsc@cogburncares.com 3 Erik W. Fox, Esq. Nevada Bar No. 8804 4 ewf@cogburncares.com 2580 St. Rose Parkway, Suite 330 5 Henderson, Nevada 89074 Telephone: (702) 748-7777 6 Facsimile: (702) 966-3880 Attorneys for Plaintiff 7

8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 JUANA ORTIZ-DE LOZANO, individually Case Number: and on behalf of the Class Members, 2:21-cv-01774-APG-BNW 11 Plaintiff, 12 vs. 13 N.A.R., INC. d/b/a NORTH AMERICAN 14 RECOVERY, a foreign corporation,

15 Defendant.

17 MOTION TO AMEND COMPLAINT 18 Plaintiff, Juana Ortiz-De Lozano, by and through counsel, Cogburn Law, moves this court 19 for an order allowing Plaintiff to file her First Amended Complaint. This Motion is made and based 20 upon the papers and pleadings on file herein, the following Memorandum of Points and 21 Authorities, any exhibits attached hereto, and any oral argument this Court may choose to 22 entertain. 23 24 1 I. MEMORANDUM OF POINTS AND AUTHORITIES 2 The Proposed Amended Complaint, attached as Exhibit 1 to this Motion, removes 3 reference to two things: (1) Class allegations and (2) and the mistaken inclusion of a paragraph 4 asserting NAR is not a licensed Collection Agency in the State of Nevada. NAR is licensed as 5 they have asserted. The proposed amendment is not for the purpose of delay, but rather refine 6 allegations consistent with the representations made by NAR regarding minimal filings and the

7 issues with meeting the numerosity element for establishing a Class. As such, this Court should 8 permit the Amendment, which clarifies the nature of the Claims between the parties at issue before 9 this Court. 10 II. LEGAL ARGUMENT 11 Rule 15 provides that leave to amend “shall be freely given when justice so requires.” 12 Fed.R.Civ.P. 15(a). According to the Supreme Court, “this mandate is to be heeded.” Foman v. 13 Davis, 371 U.S. 178, 182 (1962). “If the underlying facts or circumstances relied upon by a 14 plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim 15 on the merits.” Id. Accordingly, the Ninth Circuit follows a “strong policy permitting amendment,”

16 Fuller v. Vines, 36 F.3d 65, 67 (9th Cir. 1994); and cautions that leave to amend should only be 17 denied in extreme cases such as undue delay, bad faith, or dilatory motive on the part of the 18 movant. Johnson v. Buckley, 356 F.3d 1067 (9th Cir. 2004). 19 Dismissal without leave to amend is improper unless it is clear, upon de novo review that 20 the complaint could not be saved by any amendment. See Missouri ex rel. Koster v. Harris, 847 21 F.3d 646, 655 (9th Cir.), cert. denied sub nom. Missouri ex rel. Hawley v. Becerra, 137 S. Ct. 2188 22 (2017); AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012); Jewel v. 23 Nat’l Sec. Agency, 673 F.3d 902, 903 n.3 (9th Cir. 2011); Thinket Ink Info Res., Inc. v. Sun 24 1|| Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). Amendment is appropriate for the reason 2|| stated above. CONCLUSION 4 Plaintiff respectfully requests this Court grant the Motion and permit the Proposed 5|| Amended Complaint to be filed. The Amendment, if granted, should be without prejudice to the re-assertion of Class claims should discovery or other information provide a factual basis to re- assert those claims. 8 Dated this 29th day of November, 2021. 9 Order COGBURN LAW 10 IT IS ORDERED that ECF No. 18 is DENIED without prejudice. The parties By:__A/Erik W. Fox are directed to meet and confer about OT 11 seget . Jamie S. Cogburn, Esq. Plaintiff's proposed amended complaint. See LR 16-1(d). If th ti th Nevada Bar No. 8409 12|| See LR 16-1(d). If the parties agree, the bait W. Fox, Esq. parties may file a stipulation to amend Nevada Bar No. 8804 13|| the complaint. If the parties cannot 2580 St. Rose Parkway, Suite 330 agree, Plaintiff may refile the motion. Henderson, Nevada 89074 14 parep, vstsonsNexenbe 30, 2021 Attorneys for Plaintiff 15 vwehen CERTIFICATE OF SERVICE 16 I hereby certify that I electronically filed the foregoing MOTION TO AMEND 17|| COMPLAINT with the Clerk of the Court for the United States District Court by using the court’s CM/ECF system on the 29th day of November, 2021. 19 xX I further certify that all participants in the case are registered CM/ECF users and 20|| that service will be accomplished by the CM/ECF system. 21 22 /s/Katie Johnson An employee of Cogburn Law 23 24

Page 3 of 3