Parish v. Frazier

195 F.3d 761, 1999 WL 1029619
Court of Appeals for the Fifth Circuit·Decided October 13, 1999·No. No. 98-60476·Published·Cited by 61 cases

Opinion

PER CURIAM:

Angela Parish appeals the district court’s order granting the defendants’ motion for summary judgment and denying her motion for leave to amend her complaint. For the reasons that follow, we affirm.

I.

Parish sued the defendants for Fair Debt Collection Practices Act (FDCPA) violations. Parish’s suit was predicated on a collections complaint the defendants filed against her to recover a debt Parish allegedly owed Memorial Hospital at Gulfport (“Memorial”). Defendants maintain that defendant Medical Credit Service (“MCS”) had a written contract with Memorial to collect debts for unpaid services. After Parish failed to pay Memorial the amount set forth in an itemized bill for treatment she received at Memorial, her account was forwarded to MCS for collection. When MCS failed to obtain payment from Parish, defendant Frazier filed a collection complaint in state court. Parish filed a motion to dismiss on grounds that the complaint was barred by the applicable statute of limitations. According to defendants, that motion is still pending. Defendants filed a motion for summary judgment on Parish’s complaint, which the district court granted. After the defendants filed their summary judgment motion, Parish sought to amend the instant complaint to allege improper fee splitting and unauthorized practice of law by the defendants. The district court • denied this motion. On appeal, Parish complains of the district court’s order granting summary judgment and its order denying her motion to amend the complaint.

II.

We first address the district court’s denial of Parish’s motion for leave to amend her complaint. On appeal, we review the denial of such a motion for abuse of discretion. Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir.1981). Under Federal Rule of Civil Procedure 15(a), leave to amend “shall be freely given when justice so requires.” However, leave to amend “is by no means automatic.” Little v. Liquid Air Corp., 952 F.2d 841, 845-6 (5th Cir.1992); Addington v. Farmer’s Elevator Mutual Insurance Co., 650 F.2d 663, 666 (5th Cir.1981); Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir.1979). The decision “lies within the sound discretion of the district court.” Little, 952 F.2d 841, 846.

The district court found that allowing Parish to amend would unduly prejudice the defendants by increasing the delay and by expanding the allegations beyond the scope of the initial complaint. See Little, 952 F.2d 841, 846; Addington, 650 F.2d 663, 667; Layfield, 607 F.2d 1097, 1099; Ferguson v. Roberts, 11 F.3d 696, 706-7 (7th Cir.1993). Also, it found that the seven month delay between the filing of the original complaint and the motion for leave to amend could have been avoided by due diligence, as plaintiff could have raised the additional claims in her complaint or at least sought to amend at an earlier time. See Layfield, 607 F.2d 1097, 1099. Plaintiff bears the burden of showing that delay was due to oversight, inadvertence or excusable neglect, and the district court found that [764]*764Parish made no such showing; Gregory, 634 F.2d 199, 203; see also Little, 952 F.2d 841, 846.

As the district court noted, we more carefully scrutinize a party’s attempt to raise new theories of recovery by amendment when the opposing party has filed a motion for summary judgment. Little, 952 F.2d 841, 846 and n. 2; see also Addington, 650 F.2d 663, 667; Freeman, 381 F.2d 459, 469-70. Parish filed her motion to amend on the same day defendants filed their motion for summary judgment. The district court found that Parish’s attempt to broaden the issues would likely require additional discovery and another motion for summary judgment, which would unduly prejudice the defendants and raise concerns about seriatim presentation of facts and issues.

The district court did not abuse its discretion in denying the motion to amend.

III.

Next, we address the district court’s grant of the defendants’ motion for summary judgment. Parish appeals two aspects of the district court’s order. First, she alleges that the court erred in granting the motion on the question of whether defendants violated the FDCPA, 15 U.S.C. § 1692 et seq, by suing on a time-barred debt. Second, she alleges that the court erred in granting the motion on the question of whether defendants violated § 1692e of the FDCPA by using a “false, deceptive, or misleading” practice in attaching to their collections complaint a sworn affidavit that the debt had been assigned, when in fact there was no assignment.

A.

We review an appeal from a summary judgment de novo. River Production Co., Inc. v. Baker Hughes Production Tools, Inc., 98 F.3d 857, 859 (5th Cir.1996); McMurtray v. Holladay, 11 F.3d 499, 502 (5th Cir.1993). Summary judgment is proper when the evidence shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c).

B.

In support of her first argument, Parish cites the three year statute of limitations for a suit to collect on an account, and points out that defendants sued almost four years after the action accrued. Miss. Code Ann. § 15-1-29 (Parish actually cites Miss.Code Ann. § 11-53-81, but presumably meant to cite § 15-1-29).

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Parish v. Frazier, 195 F.3d 761, 1999 WL 1029619 (5th Cir. 1999).

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