Stark v. Stall ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTON EWING, Case No.: 19-cv-00366-AJB-AHG Plaintiff, 12 ORDER ON COLLETTE STARK’S v. MOTION FOR CLARIFICATION OF 13 THE COURT’S ORDER (Doc. No. 21) STUART STALL, 14 Defendant. 15 16 17 Presently before the Court is former Plaintiff Collette Stark’s (“Stark”) motion for 18 clarification of the Court’s order dismissing Stark from this Telephone Consumer 19 Protection Act (“TCPA”) action. (Doc. No. 21.) Stark seeks clarification on whether her 20 dismissal is with or without prejudice. (Doc. No. 21 at 3.) 21 In the Court’s order dismissing Stark, the Court held that Stark lacked standing 22 because the First Amended Complaint (“FAC”) failed to allege any facts demonstrating 23 that Stark was injured. (Doc. No. 14 at 4–5.) The Court concluded that “[n]o factual 24 allegations are made as to any phone number that is owned by Stark. Further, no mention 25 is made of Stark ever answering any specific phone call whatsoever.” (Id.) The FAC is 26 focused almost entirely on the alleged wrongful telephone calls made to Plaintiff Anton 27 Ewing (“Ewing”) and Stark’s name is only mentioned in conjunction with Ewing. Based 28 on the foregoing, the Court clarifies that Stark is dismissed WITHOUT PREJUDICE as 1 || she is dismissed for lack of standing, butt WITHOUT LEAVE TO AMEND. See Fleck & 2 ||Assocs. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006) (holding that a 3 || dismissal for lack of standing is one for lack of subject matter jurisdiction, which should 4 ||be without prejudice); Fletcher v. California Corr. Health Care Servs., No. 16-CV-04187- 5 || YGR(PR), 2016 WL 5394125, at *3 (N.D. Cal. Sept. 27, 2016) (“The dismissal is without 6 || prejudice as it is based on a lack of standing and without leave to amend as any amendment 7 || would be futile.”’). 8 IS SO ORDERED. 9 || Dated: December 10, 2019 Q 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28