Bentley v. Midland Credit Management Inc ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IN RE: MIDLAND CREDIT Case No. 11-md-2286-MMA (MDD) MANAGEMENT, INC., TELEPHONE 12 CONSUMER PROTECTION ACT ORDER RE: JOINT MOTION TO 13 LITIGATION VOLUNTARILY DISMISS SECOND CONSOLIDATED 14 AMENDED COMPLAINT AND 15 RELATED MEMBER CASES 16 [Doc. No. 787] 17 18 19 Lead Plaintiff Emir Fetai (“Fetai”) and Defendants Midland Credit Management, 20 Inc., Midland Funding LLC, and Encore Capital Group, Inc. (collectively, “Defendants”) 21 jointly move for “voluntary dismissal of the Second Consolidated Amended Complaint in 22 this action (Dkt. No. 651), in its entirety, with prejudice to the rights of Lead Plaintiff 23 Emir Fetai and without prejudice to the rights of the putative class, with the parties to 24 bear their own costs.” Doc. No. 787 at 2.1 Fetai and Defendants also move “to dismiss 25 the member actions of Curtis Bentley [“Bentley”], 16-cv-2157-MMA (MDD), and 26 27 1 All citations refer to the pagination assigned by the CM/ECF system. All docket references refer to 28 1 William Baker [“Baker”], 16-cv-2768-MMA (MDD).” Id. at 3. The Court addresses the 2 parties’ request for dismissal with respect to each Plaintiff in turn.2 3 I. PLAINTIFF FETAI 4 There appear to be two related fundamental problems with Fetai’s “action” against 5 Defendants. First, the Court does not appear to have jurisdiction over Fetai’s action 6 because the Judicial Panel on Multidistrict Litigation (“Panel” or “JPML”) never 7 transferred Fetai’s action to the MDL. See 28 U.S.C. § 1407(a) (stating that the Panel 8 authorizes transfers). Second, and relatedly, Fetai appears to lack a separate action that 9 could be consolidated or coordinated within this MDL because of his original action’s 10 voluntary dismissal in the Eastern District of Wisconsin. See In re Korean Air Lines Co., 11 Ltd., 642 F.3d 685, 700 (9th Cir. 2011) (“Within the context of MDL proceedings, 12 individual cases that are consolidated or coordinated for pretrial purposes remain 13 fundamentally separate actions, intended to resume their independent status once the 14 pretrial stage of litigation is over.” (emphasis added)); see also Fetai v. Midland Credit 15 Management Inc., No. 2:18-cv-01564-DEJ (E.D. Wis.), ECF No. 5. 16 Here, it appears that Fetai has not adhered to the procedures necessary to properly 17 become part of this MDL. See In re FCA US LLC Monostable Elec. Gearshift Litig., No. 18 16-md-2744, 2017 WL 6402992, at *4 (E.D. Mich. Mar. 21, 2017). After the Panel 19 deemed Fetai’s action as inappropriate for inclusion as part of the MDL, see JPML No. 20 2286 Doc. No. 1078, no party moved for transfer of his then-existing individual action 21 into the MDL pursuant to JPML Rule 7.1(b)(i). Alternatively, Fetai failed to become part 22 of any other member case already within the MDL by means of a member Plaintiff 23 amending her or his individual complaint to add Fetai as a Plaintiff. Regardless of 24 Defendants’ consent or indifference to Fetai’s procedural missteps, the Court has an 25 26 2 The Court construes the parties request for “voluntary dismissal of the Second Consolidated Amended 27 Complaint in this action,” Doc. No. 787 at 2, as a request to dismiss the respective Plaintiffs’ claims. Because the Court dismisses the Second Consolidated Amended Complaint’s underlying member 28 1 obligation to only adjudicate claims that are within its subject matter jurisdiction, brought 2 by parties over whom the Court may properly exercise personal jurisdiction. Thus, the 3 Court lacks the necessary jurisdiction over Fetai. Accordingly, irrespective of the reasons 4 set forth in the parties’ joint motion, the Court DISMISSES Fetai’s and the putative 5 class’s claims without prejudice based on lack of jurisdiction. 6 II. PLAINTIFF BAKER 7 The parties have styled this joint motion as one being brought by Fetai and 8 Defendants. The motion does not state explicitly whether Baker joins in the motion. The 9 Court previously granted Defendants’ motion to compel arbitration and stayed Bentley’s 10 and Baker’s individual member cases. See Doc. No. 669 at 17–18. However, “no 11 arbitration commenced because the parties resolved their dispute shortly after the motion 12 to compel arbitration was granted.” Doc. No. 787 at 2. Additionally, Baker died on 13 November 17, 2018. See Baker v. Midland Credit Management Inc., No. 16-cv-2768- 14 MMA (MDD) (S.D. Cal.), ECF No. 15. Defendants served a Notice of Suggestion of 15 Death on Baker’s estate representative. See Baker, 16-cv-2768-MMA (MDD), ECF No. 16 17. Because no party made a motion for substitution within 90 days after service, 17 Baker’s action must be dismissed. See Fed. R. Civ. P. 25(a)(1). Accordingly, the Court 18 DISMISSES Baker’s member case (16-cv-2768-MMA (MDD)) with prejudice as to 19 Baker and without prejudice as to the putative class. 20 III. PLAINTIFF BENTLEY 21 The motion does not state explicitly whether Bentley joins in the motion. 22 However, the attorney caption information on the joint motion reveals that Fetai and 23 Bentley have the same counsel. See Doc. No. 787 at 1. Thus, pursuant to Federal Rule 24 of Civil Procedure 11(b) and Civil Local Rule 83.3.f.1, the Court construes the motion as 25 being also brought by Bentley. Accordingly, the Court DISMISSES Bentley’s member 26 case (16-cv-2157-MMA (MDD)) with prejudice as to Bentley and without prejudice as 27 to the putative class. 28 / / / 1 IV. CONCLUSION 2 For the foregoing reasons, the Court DISMISSES Fetai, Baker’s member case (16- 3 ||cv-2768-MMA (MDD)), and Bentley’s member case (16-cv-2157-MMA (MDD)). Each 4 ||party shall bear its own costs. The Court DIRECTS the Clerk of Court to terminate 5 |;|member cases 16-cv-2768-MMA (MDD) and 16-cv-2157-MMA (MDD) in their entirety. 6 ||The Court DIRECTS the Clerk of Court to file this Order on the dockets of 1 1-md-2286- 7 ||MMA (MDD), 16-cv-2768-MMA (MDD), and 16-cv-2157-MMA (MDD). 8 IT ISSO ORDERED. 9 10 ||Dated: July 2, 2020 11 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28