James Long v. Ingenio, Inc. , 542 F. App'x 654 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES THOMAS LONG, on behalf of No. 11-17754
himself and the proposed class, DBA
James Thomas Long Photography, D.C. No. 3:10-cv-05761-RS
Plaintiff - Appellant,
MEMORANDUM*
v.
INGENIO, INC., a corporation, DBA
AT&T Interactive,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted October 15, 2013**
San Francisco, California
Before: THOMAS and McKEOWN, Circuit Judges, and BENNETT, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
Plaintiff James Thomas Long appeals the district court’s grant of summary
judgment to defendant Ingenio, Inc. in this putative nationwide class action alleging
claims for declaratory relief, unjust enrichment, false advertising, and unfair business
practices under California state law. Long also appeals the district court’s failure to
grant him leave to amend his complaint to add additional parties. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s
grant of summary judgment. Tehama-Colusa Canal Auth. v. U.S. Dep’t of the
Interior, 721 F.3d 1086, 1093 (9th Cir. 2013). “We review for abuse of discretion the
district court’s decisions as to amendments to the complaint.” World Wide Rush, LLC
v. City of Los Angeles, 606 F.3d 676, 684 (9th Cir. 2010). We affirm the district
court’s grant of summary judgment to Ingenio and remand for further proceedings
consistent with this disposition.
The district court correctly granted summary judgment to Ingenio because there
is no genuine issue of material fact as to any of Long’s claims. First, the record
confirms that the allegations in Long’s complaint refer to Pay Per Call services
provided and advertised by another entity, Pacific Bell Directory, rather than Ingenio.
In addition, Long does not, and cannot, dispute that the governing Pay Per Call
contract about which he complains was between him and Pacific Bell Directory, not
Ingenio. Nor can Long dispute that Ingenio had no communications with him
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regarding solicitation of the Pay Per Call services, made no misrepresentations to him
regarding such services, and did not bill or charge him for any services. The record
contains no evidence that Ingenio committed any unlawful, unfair, or fraudulent
business act; engaged in false advertising in connection with the Pay Per Call services;
was unjustly enriched at Long’s expense; or caused him to suffer economic injury.
Put simply, Long has sued the wrong party, and all of his claims against Ingenio fail
as a matter of law.
Attempting to salvage his claims, Long asserts that Ingenio established the
unconscionable Pay Per Call criteria for classifying calls as chargeable, placed
misleading information about his business into the online “stream of commerce,” and
aided, abetted, and facilitated unlawful, unfair, or fraudulent acts by providing
technical support for the Pay Per Call services. Viewing the facts in the light most
favorable to Long, we conclude that these arguments find no support in the record,
misconstrue the evidence and the law, and fail to raise a genuine issue of material fact
on any of Long’s claims against Ingenio. We therefore affirm the district court’s grant
of summary judgment to Ingenio.
Although the district court entered judgment in favor of Ingenio and closed
Long’s case, it never expressly ruled on Long’s requests for leave to amend to add
parties to his complaint. Accordingly, we decline to consider—and have no basis
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upon which to determine—whether the district court abused its discretion in the
absence of any ruling on this issue. Instead, we remand to the district court with
instructions to consider in the first instance Long’s request for leave to amend to add
additional parties.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
INSTRUCTIONS. Each party shall pay its own costs on appeal.
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