Tuck v. Cascadians, Inc. ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ROY TUCK, as an individual; Case No.: 19-cv-1505-WQH-RBB DEBORAH TUCK, as an 11 individual, ORDER 12 Plaintiffs, 13 v. 14 WAYNE MCMULLEN, et al., 15 Defendants. 16 HAYES, Judge: 17 The matter before the Court is the Motion for Leave to File Amended Complaint 18 filed by Plaintiff Roy Tuck. (ECF No. 51). 19 I. BACKGROUND 20 On August 12, 2019, Plaintiffs Roy and Deborah Tuck, proceeding pro se, filed a 21 Complaint against Defendants Yes Energy Management, Inc. (“YEM”); Cascadians, Inc. 22 (“Cascadians”); Champs; Associated Asset Management, LLC (“AAM”); Epsten Grinnel 23 & Howell, APC (“EG&H”); Wayne McMullen; Donnie Drake; Nancy McLennan; 24 Amanda Shaw; Annette Imoto; Michelle Dennis; and Does 1 through 10, inclusive. (ECF 25 No. 1). Plaintiffs alleged claims against all Defendants except Defendant YEM for 1) 26 violations of the Telephone Consumer Protection Act (“TCPA”); 2) violations of the 27 federal Fair Debt Collection Practices Act (“FDCPA”); 3) violations of the California 28 1 Rosenthal Fair Debt Collection Practices Act; 4) misprision of felony; and 5) malicious 2 prosecution. Plaintiffs alleged claims against all Defendants for 1) abuse of process; 2) 3 defamation; 3) invasion of privacy; and 4) civil conspiracy. 4 On September 3, 2019, Defendants Wayne McMullen, Donnie Drake, and Nancy 5 McLennan filed a Motion to Dismiss the Complaint. (ECF No. 8). On October 15, 2019, 6 Defendants AAM and Cascadians filed a Motion to Dismiss the Complaint. (ECF No. 24). 7 On the same day, Defendant YEM filed an Answer to the Complaint. (ECF No. 25). 8 On October 17, 2019, Plaintiffs voluntarily dismissed the claims against Defendants 9 Amanda Shaw, Annette Imoto, and Michelle Dennis with prejudice. (ECF No. 27). On 10 November 7, 2019, the Court issued an Order granting the parties’ Joint Motion to Dismiss 11 the claims against Defendant EG&H with prejudice. (ECF No. 35). 12 On April 13, 2020, the Court issued an Order granting Defendants’ Motions to 13 Dismiss the Complaint and dismissing the Complaint without prejudice and with leave to 14 file a motion for leave to amend. (ECF No. 45). The Court determined that Plaintiffs failed 15 to state facts sufficient to state a claim for violations of the TCPA and FDCPA. The Court 16 determined that there is no private right of action to enforce the misprision of felony statute, 17 18 U.S.C. § 4, a federal criminal statute. The Court declined to exercise supplemental 18 jurisdiction over Plaintiffs’ remaining state law claims. 19 On June 4, 2020, Plaintiff Roy Tuck filed a Motion for Leave to File Amended 20 Complaint.1 (ECF No. 51). Plaintiff Roy Tuck seeks to amend the Complaint to remove 21 Plaintiff Deborah Tuck and Defendant Nancy McLennan, to remove all causes of action 22 except the claim for violations of the TCPA, and to “[m]ore clearly plead and articulate[ ] 23 [ ] the [ ] one sole remaining statutory cause of action” under the TCPA. (Id. at 4). 24 On June 15, 2020, Defendants AAM, Cascadians, Wayne McMullen, and Donnie 25 Drake filed an Opposition to Plaintiff’s Motion for Leave to File Amended Complaint. 26 27 1 Plaintiff Roy Tuck seeks leave to file a “Second Amended Complaint.” (ECF No. 51 at 5). The Court 28 1 (ECF No. 52). On the same day, Defendant YEM filed an Opposition to Plaintiff’s Motion 2 for Leave to File Amended Complaint. (ECF No. 53). Defendants contend that amendment 3 would be futile because the proposed amendments fail to remedy the deficiencies identified 4 by the Court in its Order on Defendants’ Motions to Dismiss. Defendants contend that the 5 proposed amended complaint “still fails to identify which party took which action . . . [and] 6 still does not sufficiently plead facts to state a proper claim for relief under the TCPA.” 7 (ECF No. 52 at 2 (emphasis omitted)). Defendant YEM further contends that Plaintiff fails 8 to identify facts specific to YEM. 9 II. LEGAL STANDARD 10 Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend “be 11 freely given when justice so requires.” Fed. R. Civ. P. 15(a). “This policy is to be applied 12 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th 13 Cir. 2003) (per curiam) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 14 712 (9th Cir. 2001)). The Supreme Court has identified several factors district courts should 15 consider when deciding whether to grant leave to amend: “undue delay, bad faith or 16 dilatory motive on the part of the movant, repeated failure to cure deficiencies by 17 amendments previously allowed, undue prejudice to the opposing party by virtue of 18 allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 19 182 (1962); see also Smith v. Pac. Props. Dev. Corp., 358 F.3d 1097, 1101 (9th Cir. 2004). 20 “Not all of the [Foman] factors merit equal weight. As this circuit and others have held, it 21 is the consideration of prejudice to the opposing party that carries the greatest weight.” 22 Eminence Capital, LLC, 316 F.3d at 1052. “The party opposing amendment bears the 23 burden of showing prejudice.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th 24 Cir. 1987). “Absent prejudice, or a strong showing of any of the remaining Foman factors, 25 there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence 26 Capital, LLC, 316 F.3d at 1052. 27 /// 28 /// 1 III. RULING OF THE COURT 2 In the proposed amended complaint, Plaintiff Roy Tuck alleges a single claim for 3 violations of the TCPA against Defendants Wayne McMullen, Donnie Drake, Cascadians, 4 YEM, AAM, and Champs.2 Defendants’ sole argument against granting leave to amend is 5 futility. Defendants contend that leave to amend would be futile because the SAC fails to 6 state a claim on which relief can be granted. However, “the sufficiency of an amended 7 pleading ordinarily will not be considered on a motion for leave to amend.” Breier v. N. 8 Cal. Bowling Proprietors’ Ass’n, 316 F.2d 787, 790 (9th Cir. 1963); see Netbula v. Distinct 9 Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003) (“Denial of leave to amend on [futility] 10 ground[s] is rare.”). “If the underlying facts or circumstances relied upon by a plaintiff may 11 be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the 12 merits.” Foman, 371 U.S. at 182. The Court will defer consideration of Defendants’ 13 challenges to the merits of the proposed amended complaint until after the amended 14 pleading is filed. See Netbula, 212 F.R.D. at 539 (“Ordinarily, courts will defer 15 consideration of challenges to the merits of a proposed amended pleading until after leave 16 to amend is granted and the amended pleading is filed.”); Hynix Semiconductor, Inc. v. 17 Toshiba Corp., No. C-04-4708 VRW, 2006 U.S. Dist. LEXIS 82148, at *6 (N.D. Cal. Oct. 18 31, 2006) (Defendant’s challenges to the merits of a proposed amended pleading “should 19 be addressed in a motion to dismiss or for summary judgment, not in an opposition to the 20 present motion for leave to amend.”). Upon consideration of the Foman factors, the Court 21 finds that leave to amend should be granted pursuant to Rule 15(a). 22 /// 23 24 /// 25 26 27 28 1 IT IS HEREBY ORDERED that Plaintiff Roy Tuck’s Motion for Leave to File 2 || Amended Complaint (ECF No. 51) is granted. Plaintiff shall file the proposed amended 3 ||complaint attached to the Motion for Leave to File Amended Complaint (ECF No. 51 at 4 11-51) within ten (10) days of the date of this Order. 5 || Dated: July 2, 2020 BE: te Ze. Ma 6 Hon, William Q. Hayes 4 United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28