United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
For the reasons stated below, the Court grants in part and denies in part Defendant's Motion to Strike  and denies Defendant's Motion for Summary Judgment .
This case involves claims under the Fair Debt Collection Practices Act ("FDCPA"). 15 U.S.C. § 1692 et seq. Plaintiff alleges that Defendant called him at his place of employment several times after it knew or had reason to know that Plaintiff was not permitted to receive such calls, violating 15 U.S.C. §§ 1692c(a)(3) and 1692d. The Court now considers Defendant's Motion to Strike  and Motion for Summary Judgment .
A. Motion to Strike 
Plaintiff asserted two claims in the Complaint . He claims that Defendant violated 15 U.S.C. §§ 1692c(a)(3) and 1692d by making collection calls to his workplace despite knowing or having reason to know that his employer prohibited such calls. According to the Complaint, Plaintiff's claims arise from phone calls on or around August 8, 13, and 20, 2013, after Plaintiff had told Defendant on August 6 that he was not allowed to receive calls at work.
In his response  to Defendant's Motion for Summary Judgment, Plaintiff argued the same two claims, but he altered the factual basis for them. Plaintiff now claims that he instructed Defendant not to call him at work in early July 2013, and he claims that Defendant called him at work at least sixteen times between July 15 and August 26. Plaintiff also asserted for the first time that Defendant violated 15 U.S.C. § 1692d(6) by failing to meaningfully disclose its identity, and that Defendant violated 15 U.S.C. § 1692e by making false, deceptive, or misleading statements in connection with its attempt to collect a debt.
Defendant filed a Motion to Strike  the new claims. In response, Plaintiff contends that the claims are not new because they arise under the FDCPA, or alternatively that he should be permitted to amend his Complaint.
1. 15 U.S.C. § 1692e
Section 1692e prohibits the use of false, deceptive, or misleading representations or means in connection with the collection of a debt. 15 U.S.C. § 1692e. Plaintiff did not refer to Section 1962e or plead any facts related to it. Therefore, Plaintiff failed to plead a Section 1692e claim. "A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the Court." Cutrera v. Bd. of Supervisors, 429 F.3d 108, 113 (5th Cir. 2005).
Plaintiff suggests that he should be permitted to amend his Complaint, but the amendment deadline expired on March 7, 2014. "Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired." S & W Enters., LLC v. Southtrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003). The rule provides that a scheduling order "may be modified only for good cause and with the judge's consent." FED. R. CIV. P. 16(b)(4). "It requires a party to show that the deadline cannot be met despite the diligence of the party needing the extension." Marathon Fin. Ins. Inc., RRG v. Ford Motor Co., 591 F.3d 458, 470 (5th Cir. 2009) (punctuation omitted). "Four factors are relevant to good cause: (1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice." Id. (punctuation omitted).
Plaintiff provided no explanation for his failure to timely seek leave to amend. Allowing Plaintiff to assert a Section 1962e claim at this point would prejudice Defendant, as it has not had an opportunity to conduct discovery on the claim. Although "a continuance could be granted for additional discovery, ... [it] would unnecessarily delay the trial." S & W. Enters., 315 F.3d at 537. Therefore, three of the four factors weigh against a finding of good cause. The Court denies Plaintiff's request to amend and grants Defendant's Motion to Strike  as to Plaintiff's purported claim under 15 U.S.C. § 1692e. See Smith v. EMC Corp., 393 F.3d 590, 598 (5th Cir. 2004) (where defendant would have been prejudiced in defending against a new theory of recovery, district court correctly denied ...