PITFALLS OF PLEADING POST GLOVER
By: Chris Placitella @ Nov 12, 2012
By Matthew T. Stone, Esquire
Plaintiffs are often without all of the relevant evidence necessary to prosecute a viable cause of action against a defendant. One tool available to a plaintiff to combat this disadvantage is Rule 15 of the Federal Rules of Civil Procedure which allows a plaintiff to amend his complaint, even after the applicable statutes of limitation have run, so long as the allegations in the amended pleading “relate back” to the initial pleading. Unfortunately, the subjective analysis required in making such a determination can sometimes yield unpredictable results.
The Third Circuit’s recent decision in Glover v. FDIC, No. 11-3382, 2012 U.S. App. LEXIS 18628 (3d Cir. Sep. 5, 2012) was the first opportunity for the court to examine and set limits on when an amended claim “relates back” to the date of an original filing under language of Rule 15(c) for purposes of assessing whether the claim is timely under applicable statute of limitations. Under Rule 15, when an amended pleading “relates back to a prior pleading a plaintiff is able to avoid applicable statutes of limitation that would otherwise bar the new claims. The Rule states that a pleading relates back when “the amendment asserts a claim that arose out of the conduct, transaction, or occurrence . . . set out in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). However, the Third Circuit joined its sister courts in heightening the a plaintiff’s burden above and beyond the text of the Rule: “the underlying question for a Rule 15(c) analysis is ‘whether the original complaint adequately notified the defendants of the basis for liability the plaintiff would later advance in the amended complaint.'” Glover at *14 (quoting Meijer, Inc. v. Biovail Corp., 533 F.3d 857 (D.C. Cir. 2008)). After reading the opinion in Glover one could conclude that the opinion was a reflection of the court’s dissatisfaction with the lack of clarity or overbreadth of the original complaint. Even if so, Glover serves as a reminder of the importance of diligence in investigation and discovery so as to avoid unnecessary reliance on a court’s interpretation of the “relate back” rule.
The Glover plaintiff brought Fair Debt Collection Practice Act (“FDCPA”) claim against several defendants which the Third Circuit deemed to have accrued on January 4, 2008. Plaintiff filed his initial complaint on June 9, 2008 alleging claims under both the FDCPA and Pennsylvania’s Fair Credit Extension Uniformity Act. Specifically, in the initial complaint the plaintiff alleged that some of the defendants (the “Urden defendants”) made a “debt-collection phone call and [filed] a Foreclosure Complaint demanding payment of purportedly unlawful attorney’s fees” both in violation of the FDCPA. In the amended complaint, filed after the one-year limitations period, the plaintiff alleged for the first time that the Urden defendants violated the FDCPA by “failing to withdraw the Foreclosure Complaint” it had errantly filed against plaintiff.
The court held that while plaintiff alleged the same causes of action against the Udren defendants in both the original and amended complaints, the facts giving rise to the alleged FDCPAviolation in the latter were different. Having reached that conclusion, the court reasoned that the allegations in plaintiff’s amended complaint differed in “time and type” from what was alleged in the original complaint. The court recognized that “although the original and amended claims have some elements and facts in common, the whole thrust of the amendments is to fault [defendants], and to fault them for conduct different from that identified in the original complaint.” Id. at *17-18 (quoting Meijer, 533 F.3d at 866).
It is important to note the Glover plaintiff did in fact reference the failure to withdraw the Foreclosure Complaint in her initial complaint. That is, the conduct which plaintiff would later attribute to the Urden defendants was there to be read in the initial pleading. However, this conduct was not the basis of the Udren defendants’ liability in the initial complaint, was in fact attributed to a different defendant (Wells Fargo/WaMu), and reference to this fact was buried in a single paragraph in a very lengthy complaint. For these reasons, the court did not find the inclusion of the relevant facts, or at least the manner of their inclusion in the initial complaint, sufficient to trigger the relate back provision of Rule 15:
Perhaps by making several inferential leaps, the [Udren defendants] might have guessed that, hidden between the factual allegations and the unmoored recitation of the FDCPA, a claim might be asserted against them for conduct attributed to Wells Fargo and WaMu. But the Federal Rules do not place the onus on the defendant to piece together the disparate fragments of a disjointed complaint to distill the essence of a claim. Courts frown on pleading by means of obfuscation because a pleading that is prolix and/or confusing makes it difficult for the defendant to file a responsive pleading and makes it difficult for the trial court to conduct orderly litigation. Glover could have given some clue in her original pleading the Udren Defendants were complicit in failing to discontinue the Foreclosure Complaint, and therefore liable for that false representation. She did not.
Id. at *19-20.
But consider the following: Glover was a case wherein a series of defendants were sued for their role in the collection of a debt. Making the leap from the initial to the amended complaint, plaintiff alleged the same facts, the same claims and against the same defendants, but attributed the specific facts to different defendants. Thus, it would seem that the Urden defendants knew the following upon receipt and review of plaintiff’s initial complaint: (1) plaintiff was seeking to hold the Urden defendants liable under the FDCPA; (2) the debt collection at issue; (3) that plaintiff was accusing Wells Fargo/WaMu of failing to withdraw the Foreclosure Complaint; and finally, (4) the Urden defendants knew the extent to which they were complicit in failing to withdraw the Amended Complaint. As these facts, in and of themselves would suffice to establish notice, the logical conclusion was that the court was focused on the style of the complaint. The Third Circuit pointed out the facts in question could only be found in a single paragraph in a 40-page complaint, and a plaintiff has an obligation not to obscure the claims they are asserting. “Pleadings are not like magic tricks, where a plaintiff can hide a claim with one hand, only to pull it from her hat with the other.” Id. at *18.
And so the tension between asserting satisfying the federal requirements of notice pleading in federal court that arise at the outset of litigation and then, seeking to amend with the completion of some discovery becomes evident. Given the lengths the court goes to in criticizing the original pleading, one could posit that had the initial pleading consisted of five-pages, but still provided the Urden defendants with the above information, perhaps the court may have reached an alternate conclusion. The better course naturally is to avoid reliance on the “relation back” argument given the seemingly narrowing scope with which courts see it apply.
Cohen, Placitella & Roth, PC (215) 567-3500