Zucker v. Porteck Global Services, Inc., et al., 13-CV-2674 (E.D.N.Y. October 23, 2015)

Officers of two health care companies defeated Plaintiff’s attempt to amend a Class Action Complaint to name them as defendants. United States District Judge Joanna Seybert denied Plaintiff’s motion to amend due to Plaintiff’s lack of diligence and inordinate delay, and the substantial prejudice that would result from adding the putative defendants to the action.

An original Complaint, alleging violations of the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act had been amended, and then terminated as against one of the employees. However, the action, which concerned certain letters sent to recover fees for certain medical radiology services, continued — nearly to the final deadline for discovery. Just seven days before the deadline, Plaintiff moved to amend the Amended Complaint, reasserting the claims against the previously terminated officer, and adding the other. Too late, said the Court, by at least two years.

Purported ‘new evidence’ advanced in support of the motion was hardly new, or, if it was, Plaintiff delayed in raising it. The initially-named officer “assumedly believed that he would not be a party to this litigation and it would likely require substantial additional resources were he to resume discovery at this late juncture”; and as to the other, never-before-named officer, the Court found it dubious that Plaintiff lacked knowledge of the “full breadth of the concocted Scheme”. Both of the putative defendants would be prejudiced in having to conduct discovery at that advanced stage of the litigation.

The Fair Debt Collection Practices Act prohibits the use of any “false, deceptive, or misleading representation or means in connection with the collection of any debt.” (15 U.S.C. sec. 1692e) Officers and employees of of a debt collecting agency may be held jointly and severally liable with the agency if they have acted affirmatively.

If you have questions concerning the Fair Debt Collection Practices Act, or any professional liability matter, contact Barry Jacobs, Esq.