Jones v. Ocwen Mortgage Servicing, Inc. et al

Filing 37

ORDER Denying 9 Motion to Stay and Denying 23 Motion to Dismiss, signed by District Judge Dale A. Drozd on 11/29/2017. (These related cases are referred to the assigned magistrate judge for Initial Scheduling Conference which is currently set for 2/14/2018 at 9:30 a.m. in Courtroom 10.) (Gaumnitz, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH BRANDT, 12 13 14 No. 1:17-cv-00643-DAD-EPG Plaintiff, v. ORDER DENYING MOTION TO STAY AND DENYING MOTION TO DISMISS OCWEN LOAN SERVICING, LLC, (Doc. Nos. 8, 20) 15 Defendants. 16 17 JOSEPH SANZBERRO, Plaintiff, 18 19 20 OCWEN LOAN SERVICING, LLC, Defendants. 25 26 No. 1:17-cv-00645-DAD-EPG JUANA SILVA, 23 24 (Doc. Nos. 10, 22) v. 21 22 No. 1:17-cv-00644-DAD-EPG Plaintiff, (Doc. Nos. 9, 23) v. OCWEN LOAN SERVICING, LLC, Defendants. 27 28 1 1 KARI ALVERSON, 2 3 4 Plaintiff, No. 1:17-cv-00649-DAD-EPG (Doc. Nos. 7, 19) v. OCWEN LOAN SERVICING, LLC, 5 Defendants. 6 7 ALICE JONES, Plaintiff, 8 9 10 No. 1:17-cv-00655-DAD-EPG (Doc. Nos. 9, 23) v. OCWEN LOAN SERVICING, LLC, Defendants. 11 12 13 LAURIE CALDERON, Plaintiff, 14 15 16 OCWEN LOAN SERVICING, LLC, Defendants. TOBI BROWNING, 19 20 21 22 (Doc. Nos. 9, 19) v. 17 18 No. 2:17-cv-00967-DAD-EPG Plaintiff, No. 2:17-cv-00979-DAD-EPG (Doc. Nos. 9, 17) v. OCWEN LOAN SERVICING, LLC, Defendants. 23 24 This matter is before the court on defendant’s motions to stay and motions to dismiss in 25 the above listed related cases. (See Doc. No. 29.) A hearing on the motions in Elizabeth Brandt 26 v. Ocwen Loan Servicing, LLC, No. 1:17-cv-00643 and Kari Alverson v. Ocwen Loan Servicing, 27 LLC, No. 1:17-cv-00649, was held on September 6, 2017. A hearing on the same motions made 28 in the remaining cases was held on November 7, 2017. Attorneys Joshua Swigart and Veronica 2 1 McKnight appeared on behalf of plaintiff. Attorneys Chad R. Fuller and Justin Brandt appeared 2 on behalf of defendant. Having considered the parties briefs and oral arguments, and for the 3 reasons set forth below, the court will deny both defendant’s motions to stay and motions to 4 dismiss in all of the related cases before the court 5 BACKGROUND 6 Plaintiffs, Elizabeth Brandt (“Brandt”), Joseph Sanzberro (“Sanzberro”), Juana Silva 7 (“Silva”), Kari Alverson (“Alverson”), and Laurie Calderon (“Calderon”) separately filed suit in 8 federal court on May 8, 2017 against defendant, Ocwen Loan Servicing, LLC (“Ocwen”), a debt 9 collection agency.1 Plaintiff Tobi Browning (“Browning”) also filed suit against defendant on 10 May 9, 2017. Likewise, plaintiff Alice Jones (“Jones”) filed suit against defendant on May 10, 11 2017.2 Plaintiffs owe defendant a mortgage-related debt as defined under California Civil Code 12 § 1788.2(d) and (f). However, plaintiffs bring suit under the Telephone Consumer Protection Act 13 (“TCPA”) and the Rosenthal Fair Debt Collections Act (“the Rosenthal Act”)3 alleging that 14 defendant called plaintiffs to collect a debt in an abusive manner. (See generally First Amended 15 Complaint (“FAC”) (Doc. No. 14).) All plaintiffs allege that defendant called their cell phones 16 using an automated telephone dialing system (“ATDS”) as defined by 42 U.S.C. § 227(a)(1), 17 ///// 18 1 20 Plaintiff, Doreen Byndloss-Collins, also filed suit on May 8, 2017, but settled her claims on November 3, 2017. (See Notice of Settlement (Doc. No. 40) in Doreen Byndloss-Collins v. Ocwen Loan Servicing, LLC, No. 2:17-cv-00972.) 21 2 19 22 23 24 25 There are multiple plaintiffs in these related cases. Nonetheless and for convenience, all citations throughout this order are to the docket in the lead case, Elizabeth Brandt v. Ocwen Loan Servicing, LLC, No. 1:17-cv-00643, since the parties are represented by the same counsel and made identical arguments in identical motions and oppositions concerning nearly identical complaints. To the extent there are slight variations in the facts alleged in each case, such as the number of times defendant called plaintiffs, the court will address those differences where relevant below. 3 26 27 28 Plaintiff Tobi Browning does not bring a claim under the Rosenthal Act, presumably because his claims are barred by the one-year statute of limitations in that his original complaint was filed on May 9, 2017 and the purported violations ended on August 17, 2015. (See generally First Amended Complaint (Doc. No. 14) of Tobi Browning v. Ocwen Loan Servicing, LLC, No. 2:17cv-00979.) 3 1 which is prohibited by 42 U.S.C. § 227(b)(1)(A). The specific allegations of the complaints with 2 respect to each plaintiff are as follows: 4  3 Brandt: From April 3, 2011 to July 2016, defendant called plaintiff on her cell phone 4 2,431 times. Defendant called plaintiff every day between October 1, 2015 and October 5 28, 2015 for a total of 34 calls. (FAC (Doc. No. 14) ¶¶ 30–31.)  6 Silva: From April 3, 2013 to October 2016, defendant called plaintiff on her cell phone 7 1,142 times. Plaintiff received at least 20 calls within a span of three days from March 1, 8 2015 to March 3, 2015. (FAC (Doc. No. 15) ¶¶ 22–29.)  9 Alverson: From February 19, 2014 to November 21, 2016, defendant called plaintiff on 10 her cell phone 1,139 times. She received at least one phone call every day from October 11 1, 2015 to October 29, 2015 for a total of 47 calls. (FAC (Doc. No. 15) ¶¶ 29–35.)  12 Jones: From August 10, 2011 to July 21, 2016, defendant called plaintiff on her cell 13 phone 1,448 times. At one point, defendant called plaintiff every day for 10 days straight 14 for total of 17 times. (FAC (Doc. No. 15) ¶¶ 18–29.)  15 Calderon: From May 2, 2011 to November 18, 2016, defendant called plaintiff on her 16 cell phone at least 1,433 times. She received one phone call every day for 54 days straight 17 between May and July 2012. Plaintiff also received at least one call for 100 days straight 18 between March and July 2014. (FAC (Doc. No. 16) ¶¶ 28–31.)  19 Browning: From January 6, 2010 to August 17, 2015, defendant called plaintiff 20 approximately 1,113 times. Plaintiff was called 15 times by defendant between July 26, 21 2015 and July 30, 2015. (FAC (Doc. No. 14) ¶¶ 23–29.) 22 All plaintiffs allege that they did not provide prior express consent for these calls to made, 23 and any such consent that may have existed was orally revoked. (FAC (Doc. No. 14) ¶¶ 34–36.) 24 Plaintiffs also allege that the calls began to disrupt their daily lives. (Id. at ¶¶ 41–43.) They 25 ///// 26 27 28 4 These references are to the first amended complaint filed by each plaintiff. As stated, all other references are to the first amended complaint filed in Elizabeth Brand v. Ocwen Loan Servicing, LLC, No. 1:17-cv-00643, Docket No. 14. 4 1 began to ignore phone calls from unknown numbers and missed important communications from 2 close friends and family members as a result. (Id.) 3 After plaintiffs filed suit in federal court, defendant filed motions to stay in all of the 4 cases. (Doc. No. 8.) In addition to filing oppositions to the motions to stay (Doc. No. 13), 5 plaintiffs filed first amended complaints in each case. (Doc. No. 14.) Defendant subsequently 6 filed motions to dismiss the first amended complaints. (Doc. No. 20.) Identical oppositions and 7 replies were filed in all of the cases. (Doc. Nos. 24, 25.) Below, the court will consider the issues 8 raised by defendant’s motions to stay and motions to dismiss. 9 MOTIONS TO STAY 10 11 A. Legal Standard “The power to stay proceedings is incidental to the power inherent in every court to 12 control the disposition of the causes on its docket with economy of time and effort for itself, for 13 counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); accord Stone v. 14 I.N.S., 514 386, 411 (1995) (“[W]e have long recognized that courts have inherent power to stay 15 proceedings and ‘to control the disposition of causes on its docket with economy of time and 16 effort for itself, for counsel, and for litigants.’” (Breyer, J., dissenting) (quoting Landis, 299 U.S. 17 at 254)). Deciding whether to grant a stay pending the outcome of other proceedings “calls for 18 the exercise of judgment, which must weigh competing interests and maintain an even balance.” 19 Landis, 299 U.S. at 254–55. The party seeking such a stay must “make out a clear case of 20 hardship or inequity in being required to go forward, if there is even a fair possibility that the stay 21 for which he prays will work damages to some one [sic] else.” Id. at 255. In considering whether 22 to grant a stay, a court must weigh several factors, including “[1] the possible damages which 23 may result from the granting of a stay, [2] the hardship or inequity which a party may suffer in 24 being required to go forward, and [3] the orderly course of justice measured in terms of the 25 simplifying or complicating of issues, proof, and questions of law which could be expected to 26 result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (citing Landis, 299 27 U.S. at 254–55). A stay may be granted regardless of whether the separate proceedings are 28 “judicial, administrative, or arbitral in character, and does not require that the issues in such 5 1 proceedings are necessarily controlling of the action before the court.” Leyva v. Certified 2 Grocers of Cal., Ltd., 593 F.2d 857, 864 (9th Cir. 1979). 3 B. The Telephone Consumer Protection Act and the ACA International Litigation 4 The TCPA makes it unlawful for any person “to make any call . . . using any automatic 5 telephone dialing system” to certain types of telephones without the called party’s prior express 6 consent. 47 U.S.C. § 227(b)(1)(A)(iii). The term “automatic telephone dialing system” is defined 7 as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, 8 using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. 9 § 227(a)(1). In 2015, the Federal Communications Commission (FCC) adopted rules and 10 regulations concerning the defining features of an ATDS. See In re Rules & Regulations 11 Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961 (2015) (effective July 10, 12 2015). Therein, the FCC took the position that the term “capacity” in the TCPA refers to not only 13 a system’s “present ability” to dial random or sequential numbers, but also a system’s potential 14 ability to do so. Id. at 7974. Thus, equipment that presently lacks software necessary to enable 15 sequential or random dialing—but might later be programmed to do so—could constitute an 16 ATDS. Id. 17 This distinction between present and potential ability is at issue in ACA International v. 18 Federal Communications Commission (“ACA International”), a case currently pending before the 19 D.C. Circuit Court of Appeals. Appellants in that case contend that the FCC’s definition of an 20 ATDS is unlawful. Specifically, they argue the FCC’s definition of the term “capacity” is 21 erroneously broad and must be limited to a system’s present abilities only. Also at issue before 22 the D.C. Circuit, and relevant to these cases before this court, is whether the FCC imposed an 23 unworkable regime in finding that consumers may revoke consent “in any reasonable manner,” 24 such as orally or in writing. All briefing in ACA International has been submitted, and the court 25 heard oral argument in October 2016. See Oral Argument, ACA International v. Federal 26 Commc’ns Comm’n, No. 15-1211 (D.C. Cir. Oct. 19, 2016), Doc. No. 1641668. To date, 27 however, no decision has been rendered by the D.C. Circuit in that case. 28 ///// 6 1 C. Discussion 2 3 Below, the court will consider each of the relevant factors in determining whether the granting of a stay while awaiting a decision in ACA International is appropriate in these cases. 4 1. Hardship or Inequity in Moving Forward 5 Defendant argues that granting stay will prevent the parties before this court from 6 engaging in unnecessary discovery and motion practice in the event the decision in ACA 7 International narrows or extinguishes plaintiffs’ claims. (Doc. No. 8-1 at 9.) According to 8 defendant, “with the benefit of the ACA ruling, the parties can engage in more focused litigation 9 based on the insight provided by the D.C. Circuit, thus reducing the burden of litigation on the 10 parties and on the Court.” (Id. at 10.) The court is not persuaded by this argument. 11 Regardless of how the pending appeal in ACA International is decided, the parties here 12 will be required to engage in discovery to determine the type of technology used to make the 13 calls. Discovery will also be necessary with respect to plaintiffs’ other causes of action, which 14 include state law claims such as negligence and violations of the Rosenthal Act. See, e.g., 15 Franklin, v. Ocwen Loan Servicing, LLC, Defendant, No. 17-CV-00939-AJB-BLM, 2017 WL 16 4922380, at *4 (N.D. Cal. Oct. 31, 2017) (“Ocwen will still be required to produce discovery to 17 settle the factual disputes regarding its autodialing technology and Franklin’s alleged revocation 18 of consent no matter the outcome of ACA International.”); see also Montegna v. Ocwen Loan 19 Servicing, LLC, Case No. 17-CV-00939-AJB-BLM, 2017 WL 4680168, at *5 (S.D. Cal. Oct. 18, 20 2017) (noting that discovery would be required , in any event, because “the ACA International 21 decision will not address claims brought under the Rosenthal Act, a cause of action Plaintiff also 22 brings here, and a claim which the Court finds survives defendant’s motion to dismiss.”); 23 Anderson v. Credit One Bank, Nat'l Ass’n, No. 16CV3125-MMA (AGS), 2017 WL 4654646, at 24 *3 (S.D. Cal. Oct. 17, 2017) (same); Crooks v. Rady Children’s Hosp., No. 17CV246-WQH- 25 MDD, 2017 WL 4541742, at *3 (S.D. Cal. Oct. 10, 2017) (same); Lathrop v. Uber Techs., Inc., 26 No. 14-CV-05678-JST, 2016 WL 97511, at *3–4 (N.D. Cal. Jan. 8, 2016) (same). 27 ///// 28 ///// 7 1 2. Judicial Efficiency 2 Defendant also argues that granting stay will promote judicial efficiency because the 3 scope of the issues to be resolved by this court will be narrowed by the D.C. Circuit Court of 4 Appeals’ consideration of potential capacity for an ATDS. Again, the undersigned is not 5 persuaded by this contention. 6 Here, plaintiffs have not alleged that defendant’s system has the potential ability to store 7 or produce telephone numbers to be called randomly, such that the capacity can be added if not 8 already present. Rather, in each of their first amended complaints plaintiffs appear to be 9 proceeding on a “present ability” theory that defendant called plaintiffs using an ATDS that “has 10 the capacity to store or produce telephone numbers to be called, using a random or sequential 11 number generator.” (FAC ¶ 27.) Thus, given plaintiffs’ “present ability” theory of liability as 12 alleged in their operative complaints, the decision in ACA International regarding whether the 13 FCC’s definition of the term “capacity” is erroneously broad will apparently have no bearing on 14 the outcome of these actions. Larson v. Harman Management Corp., No. 1:16-cv-00219, 2017 15 WL 3172979, at *3 (E.D. Cal. July 26, 2017) (noting that “even if the D.C. Circuit Court of 16 Appeals issues an opinion in defendant’s favor, plaintiffs’ claims under the TCPA are likely to 17 survive on plaintiffs’ ‘present ability’ theory.”). 18 Similarly, defendant argues that the decision in ACA International will determine whether 19 plaintiffs’ oral revocation of consent is sufficient as a matter of law and that this militates in favor 20 of a stay of these actions. (Doc. No. 8-1 at 6.) According to defendant, should the D.C. Circuit 21 find that the FCC’s expansive definition of revocation is unworkable and hold that revocation of 22 consent must be in writing, plaintiffs’ “oral revocation of consent may be found insufficient on its 23 face and could potentially bar” their TCPA claims. (Id.) The undersigned is, once again, not 24 convinced. As one court recently explained, “[if] the D.C. Circuit upholds the 2015 FCC Order, 25 the parties will need to conduct discovery to determine whether Plaintiffs’ revocation of consent 26 was effective. If the 2015 FCC Order’s ruling on consent revocation does not survive, the parties 27 will still need to conduct similar discovery, only under Ninth Circuit precedent.” DeClue v. 28 ///// 8 1 United Consumer Fin. Servs. Co., No. 16cv2833 JM (JMA), 2017 WL 4541668, at *2 (S.D. Cal. 2 Oct. 11, 2017); see also Anderson, 2017 WL 4654646, at *3. 3 In this regard, the Ninth Circuit has already held that although the TCPA “does not 4 explicitly grant consumers the right to revoke their prior express consent,” consumers are still 5 permitted to do so. Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1047 (9th Cir. 6 2017). The court found support for the notion of revoking consent, without indicating any 7 specific matter in which consent should be revoked, by looking to the decisions of sister circuits, 8 common law principles, congressional intent, and guidance from the FCC. Id. (noting that “such 9 a holding is consistent with the common law principle that consent is revocable. Courts have 10 found that Congress did not depart from the common law understanding of consent, and at 11 common law, consent may be withdrawn.”) (internal citations omitted). Notably, the court in Van 12 Patten reasoned that “allowing consumers to revoke their prior consent aligns with the purpose of 13 the TCPA,” which is “to protect consumers from unwanted automated telephone calls and 14 messages . . . .” Id. Thus, even if the D.C. Circuit were to hold that written revocation of consent 15 is required, the parties here will likely still be required to litigate the issue of revocation under 16 Ninth Circuit precedent. See O’Hanlon v. 24 Hour Fitness USA, Inc., No. 15-CV-01821-BLF, 17 2016 WL 815357, at *5 (N.D. Cal. Mar. 2, 2016) (noting that the D.C. Circuit’s decision is “not 18 binding on this Court[,]” because other circuit courts have also interpreted terms under the TCPA 19 including the Ninth Circuit). 20 21 Accordingly, the undersigned concludes that granting a stay pending a decision of the D.C. Circuit in ACA International will not promote simplification of the issues before this court. 22 3. Prejudice to the Opposing Party 23 Defendant next argues plaintiffs will not be prejudiced by the granting of a stay because 24 the parties before this court are in the early stages of litigation and it is not likely that the stay will 25 be lengthy. (Id. at 7–8.) Plaintiffs counter by arguing that granting a stay would prejudice them 26 because they will lose access to evidence such as call logs and dialer information that may be 27 under the control of third parties with unknown retention policies. (Doc. No. 13 at 9.) 28 ///// 9 1 ACA International was argued before the D.C. Circuit over a year ago and a decision has 2 not yet been forthcoming. In addition, regardless of the outcome, it would seem that an appeal to 3 the U.S. Supreme Court is likely. See Anderson, 2017 WL 4654646, at *3. “[E]ven the most 4 optimistic estimate of the time required for a decision from the D.C. Circuit significantly 5 understates both the delay a stay might engender and the concomitant prejudice to plaintiff.” 6 Lathrop, 2016 WL 97511, at *4. Given the significant passage of time and uncertainty regarding 7 when a final decision will be rendered in the ACA International case, this court concludes that 8 plaintiffs will likely be prejudiced by the granting of an indefinite stay. 9 For all of the reasons set forth above, the court concludes that granting a stay in these 10 cases while awaiting the decision of the D.C. Circuit in ACA International would be 11 inappropriate. Defendant will not suffer hardship or inequity in moving forward with these 12 actions because discovery will be necessary with respect to plaintiffs’ other claims regardless of 13 the decision in ACA International. Judicial efficiency will not be served because the decision in 14 ACA International will likely have little bearing on the resolution of plaintiffs’ claims. Finally, 15 plaintiffs would be prejudiced by a stay given the significant passage of time and uncertainty as to 16 when a final decision in ACA International will be rendered. Accordingly, defendant’s motion to 17 stay these actions will be denied. 18 19 MOTIONS TO DISMISS A. Legal Standard 20 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 21 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 22 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 23 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 24 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 25 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 26 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 27 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 28 Iqbal, 556 U.S. 662, 678 (2009). 10 1 In determining whether a complaint states a claim on which relief may be granted, the 2 court accepts as true the allegations in the complaint and construes the allegations in the light 3 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 4 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth 5 of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. 6 Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed 7 factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me 8 accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and 9 conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. 10 at 555. See also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, 11 supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to 12 assume that the plaintiff “can prove facts which it has not alleged or that the defendants have 13 violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., 14 Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 15 Defendant moves to dismiss these actions on the grounds that: (1) plaintiffs’ state law 16 claims are barred by the applicable statute of limitations; (2) plaintiffs have failed to adequately 17 allege negligence claims under the TCPA and the Rosenthal Act; (3) plaintiffs have not alleged 18 facts sufficient to support a finding of malice, oppression or fraud for punitive damages; and (4) 19 plaintiffs do not have standing to bring a TCPA claim because they cannot show injury-in-fact. 20 (Doc. Nos. 20-1 at 6.) 21 B. Discussion 22 23 1. State Law Claims Barred by the Statute of Limitations The statute of limitations for negligence claims in California is two years. Cal. Civ. Code 24 § 335.1. The statute of limitations for claims brought under the Rosenthal Act is one year. Cal. 25 Civ. Code § 1788.17. Here, plaintiffs’ injuries collectively span from January 6, 2010 at the 26 earliest, to November 21, 2016 at the latest. Plaintiff Browning filed suit on May 9, 2017 and 27 plaintiff Jones filed suit on May 10, 2017. The remaining plaintiffs filed suit on May 8, 2017. 28 Any injuries spanning from the respective dates in May 2015 to May 2017 are within the statute 11 1 of limitations period for negligence. Likewise, any injuries spanning from the respective dates in 2 May 2016 to May 2017 are within the Rosenthal Act statute of limitations period, save for 3 plaintiff Browning who has not brought such a claim. At issue, therefore, is whether plaintiffs’ 4 claims relating to injuries suffered prior to the respective dates in May 2015 for negligence and 5 May 2016 under the Rosenthal Act are barred by the applicable statute of limitations. Plaintiffs 6 argue they should receive the benefit of tolling with respect to their claims. (Doc. No. 24 at 10.) 7 Below, the court will address three tolling doctrines: (a) American Pipe tolling; (b) equitable 8 tolling; and (c) tolling under the continuing violations doctrine and their application to these 9 cases. 10 11 a. Tolling Under “American Pipe” Plaintiffs argue the statute of limitations for each of their causes of action is tolled because 12 of a class action that was filed in the Northern District of Illinois on October 27, 2014, Snyder v. 13 Ocwen Loan Servicing, LLC, Case No. 1:14-cv-8461. (Id. at 12.) The class in that case is 14 defined as individuals who received calls from defendant using an ATDS even after consent had 15 been revoked. (Id.) Here, plaintiffs assert that as putative class members, their claims should be 16 tolled until the class is certified in the Snyder case. (Id.) Defendant, however, argues that the 17 filing of a class action complaint in federal court only tolls the statute of limitations with respect 18 to federal claims and not state law claims, and that cross-jurisdictional tolling is not permitted 19 under California law. (Doc. No. 20-1 at 9.) 20 In Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974) (“American Pipe”), the U.S. 21 Supreme Court held that “the commencement of a class action suspends the applicable statute of 22 limitations as to all asserted members of the class who would have been parties had the suit been 23 permitted to continue as a class action.” The Ninth Circuit has held that the decision in American 24 Pipe “does not mandate cross-jurisdictional tolling as a matter of state procedure[,]” and that 25 California was unlikely to import the doctrine because of its “interest in managing its own judicial 26 system . . . .” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008); see also 27 Hendrix v. Novartiz Pharm. Corp., 975 F. Supp. 2d 1100, 1111 (C.D. Cal. 2013), aff’d, 647 F. 28 App’x 749 (9th Cir. 2016); Centaur Classic Convertible Arbitrage Fund Ltd. v. Countrywide Fin. 12 1 Corp., 878 F. Supp. 2d 1009, 1015 (C.D. Cal. 2011) (“Centaur Classic”) (“The rule is not binding 2 on state law claims, which are governed by state law statutes of limitation and state law tolling 3 principles.”). 4 In light of these authorities, tolling the statute of limitations for putative class members 5 does not apply to their state law claims. Therefore, in the cases before this court tolling based 6 upon the filing of the Snyder class action would only apply to the bringing of plaintiffs’ TCPA 7 claim. See Montegna, 2017 WL 4680168, at *8 (“Here, while American Pipe would admittedly 8 toll the statute of limitations for Plaintiff ’s federal TCPA claims, because California does not 9 recognize cross-jurisdictional tolling, this Court has no authority to apply American Pipe to 10 Plaintiff’s state law claims of negligence and violations of the Rosenthal Act.”). The statute of 11 limitations for the filing of plaintiffs’ state law claims is not subject to tolling under American 12 Pipe.5 13 b. Equitable Tolling 14 The fact that the time for bringing plaintiffs’ state law claims is not subject to tolling 15 under the decision in American Pipe does not bar “application of California’s equitable tolling 16 doctrine, which covers situations beyond those covered by American Pipe.” Hatfield v. Halifax 17 PLC, 564 F.3d 1177, 1188 (9th Cir. 2009) (finding that “California would at least apply equitable 18 tolling to claims made by its own residents.”); see also Hendrix, 975 F. Supp. 2d at 1111 (noting 19 that in the absence of American Pipe tolling, “any tolling of the statute of limitations must fall 20 within California’s doctrine of equitable tolling.”); Delagarza v. Tesoro Ref. & Mktg. Co., C-09- 21 5803 EMC, 2011 WL 4017967, at *5 (N.D. Cal. Sept. 8, 2011) (rejecting defendant’s contention 22 that equitable tolling could not be used to escape the limits of American Pipe); Gardner v. Shell 23 24 25 26 27 28 5 Moreover, although the class in Snyder v. Ocwen Loan Servicing, LLC has not yet been certified, the court in that action has found that the plaintiffs have at least “established the basis for certification of a limited class under Federal Rule of Civil Procedure 23(b)(2).” Snyder v. Ocwen Loan Servicing, LLC , No. 14 C 8461, 2017 WL 2798387, at *16 (N.D. Ill. June 28, 2017). This is of significance here because the Ninth Circuit has noted that under American Pipe, “a plaintiff can rely on the filing of a prior class action to vindicate the right in question and toll the statute in the event that class is not ultimately certified.” Clemens, 534 F.3d at 1025. (emphasis added). 13 1 Oil Co., No. 09-05876 CW, 2010 WL 1576457, at *5–6 (N.D. Cal. Apr. 19, 2010) (applying 2 California’s equitable tolling principles where American Pipe tolling was unavailable to 3 plaintiffs); cf. Centaur Classic, 878 F. Supp. 2d at 1018 (declining to apply California’s equitable 4 tolling doctrine because in that case the class actions were filed in the same forum). “Three 5 factors are taken into consideration when deciding whether to apply equitable tolling under 6 California law: (1) timely notice to the defendant in the filing of the first claim; (2) lack of 7 prejudice to the defendant in gathering evidence to defend against the second claim; and (3) good 8 faith and reasonable conduct by the plaintiff in filing the second claim.” Hatfield, 564 F.3d at 9 1185. 10 Although equitable tolling is available under California law, the court concludes that it is 11 not applicable to plaintiffs’ state law claims before this court for two reasons. First, the overlap 12 between the Snyder class action and the cases before this court is limited to the TCPA claim and 13 does not extend to the California state law claims for negligence and violations of the Rosenthal 14 Act brought by plaintiffs here. Second, like tolling under American Pipe, equitable tolling applies 15 “where one action stands to lessen the harm that is the subject of a potential second action; where 16 administrative remedies must be exhausted before a second action can proceed; or where a first 17 action, embarked upon in good faith, is found to be defective for some reason.” McDonald v. 18 Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 100 (2008); see also Gabor v. Deshler, No. 17- 19 CV-01524-LHK, 2017 WL 4151042, at *8 (N.D. Cal. Sept. 19, 2017); Warne v. City & Cty. of 20 San Francisco, No. 16-CV-06773-JSC, 2017 WL 2834050, at *7 (N.D. Cal. June 30, 21 2017), reconsideration denied, No. 16-CV-06773-JSC, 2017 WL 3575594 (N.D. Cal. July 11, 22 2017). Here, the first action in question has not been found to be defective. Rather, as noted by 23 the court, the judge presiding over the Snyder class action has found that the plaintiffs there have 24 “established the basis for certification of a limited class under Federal Rule of Civil Procedure 25 23(b)(2).” 2017 WL 2798387, at *16. While plaintiffs here may contest the finality of class 26 certification in Snyder, final class certification appears to be forthcoming in that action with no 27 finding that the suit is defective for any reason. Cf. Delagarza, 2011 WL 4017967 at *4–5 28 ///// 14 1 (finding equitable tolling applicable where class certification in the first action was ultimately 2 denied); Gardner, 2010 WL 1576457 at *5–6 (same). 3 4 5 6 Accordingly, plaintiffs are not entitled to receive the benefit of equitable tolling under California law with respect to their state law claims brought before this court. c. Tolling under the Continuing Violations Doctrine Defenses based upon the statute of limitations can also be “overcome by the continuing 7 violations doctrine.” Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal. App. 4th 324, 343 8 (2009). That doctrine, 9 10 11 12 13 permits recovery “for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period [.]” “The key is whether the conduct complained of constitutes a continuing pattern and course of conduct as opposed to unrelated discrete acts. If there is a pattern, then the suit is timely if ‘the action is filed within one year of the most recent [violation]’ [citation], and the entire course of conduct is at issue.” 14 Id. (quoting Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 812 (2001) and Joseph v. J.J. Mac 15 Intyre Companies, L.L.C., 281 F. Supp. 2d 1156, 1161 (N.D. Cal. 2003)); see also Harper v. 16 Lugbauer, No. 11-CV-01306-JST, 2014 WL 1266305, at *9 (N.D. Cal. Mar. 21, 2014), aff’d, No. 17 14-15759, 2017 WL 4228112 (9th Cir. Sept. 22, 2017). The continuing violations doctrine 18 applies to claims brought under California’s Rosenthal Act. Komarova, 175 Cal. App. 4th at 344 19 (“Unreasonably frequent calling (§ 1788.11, subd. (e)) is clearly a continuing course of conduct 20 under this test because the violation occurs only through repetition.”); Huy Thanh Vo. V. Nelson 21 & Kennard, 931 F. Supp. 2d 1080, 1087 (E.D. Cal. 2013) (confirming that the continuing 22 violations doctrine applies to the Rosenthal Act). 23 Here, according to the allegations of the first amended complaints, the calls made before 24 the filing of plaintiffs’ actions on the respective dates in May 2017 reflect a continuing pattern or 25 course of conduct on the part of defendant that are not isolated acts. All of the calls were related 26 to the collection of a debt and were made in a similar harassing and persistent manner. Thus, any 27 injuries that were incurred before the respective dates in May 2015 fall within the statute of 28 limitations period with respect to state law negligence claims. Likewise, any injuries that were 15 1 incurred by plaintiffs before the respective dates in May 2016 fall within the statute of limitations 2 period for bringing claims under California’s Rosenthal Act. See, e.g., Komarova, 175 Cal. App. 3 at 343, 345 (finding that the continuing violations doctrine applied to all the violations that 4 occurred “prior to October 12, 2005—one year before the complaint was filed.”). 5 Applying the continuing violation doctrine, the court finds that plaintiffs’ state law claims 6 as presented in their first amended complaints are not time barred by the applicable statute of 7 limitations. Accordingly, defendant’s motions to dismiss plaintiffs’ claims on untimeliness 8 grounds will be denied. 9 2. Negligence Claim 10 Defendant also moves to dismiss plaintiffs’ negligence claims. “The elements of an 11 action for negligence are the existence of duty (the obligation to other persons to conform to a 12 standard to avoid unreasonable risk of harm to them); breach of duty (conduct below the standard 13 of care); causation (between the defendant’s act or omission and the plaintiff’s injuries); and 14 damages.” Merrill v. Navegar, Inc., 26 Cal. 4th 465, 500 (2001) (emphasis in original); see also 15 Sepehry-Fard v. Dep’t Store Nat’l Bank, No. 13-CV-03131-WHO, 2013 WL 6574774, at *2 16 (N.D. Cal. Dec. 13, 2014), aff’d in part, 670 Fed. App’x 573 (9th Cir. 2016). Generally, “a 17 financial institution owes no duty of care to a borrower when the institution’s involvement in the 18 loan transaction does not exceed the scope of its conventional role as a mere lender of money.” 19 Nymark v. Heart Fed. Savings & Loan Ass’n, 231 Cal. App. 3d 1089, 1095 (1991); Montegna, 20 2017 WL 4680168 at *10; Sepehry-Fard, 2013 WL 6574774 at *2. Liability to a borrower may 21 attach, however, “when the lender ‘actively participates’ in the financed enterprise ‘beyond the 22 domain of the usual money lender.’” Wagner v. Benson, 101 Cal. App. 3d 27, 35 (1980) (quoting 23 Connor v. Great Western Sav. & Loan Ass’n, 69 Cal. 2d 850, 864 (1968)); see also Nymark, 231 24 Cal. App, 3d at 1095; Montegna, 2017 WL 4680168 at *10; Sepehry-Fard, 2013 WL 6574774 at 25 *2. 26 The majority of district courts to consider negligence claims such as these have found 27 them to be subject to dismissal under the principles recognized above and the general rule that “a 28 debt collector owes no duty of care to debtors in the collection of consumer debts.” Montegna, 16 1 2017 WL 4680168 at *11 (citing Inzerillo v. Green Tree Servicing, LLC, No. 13-cv-6010-MEJ, 2 2014 WL 1347175, at *1 (N.D. Cal. Apr. 3, 2014)); see also Franklin, 2017 WL 4922380, at *3; 3 see also Sepehry-Fard, 2013 WL 6574774 at *3; Sepehry-Fard v. MB Fin. Servs., No. C 13- 4 02784 JSW, 2014 WL 122436, at *2 (N.D. Cal. Jan. 13, 2014). However, in recently denying a 5 motion to dismiss aimed at a complaint setting forth allegations strikingly similar to those 6 advanced by plaintiffs here one district court has stated: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As an initial matter, the court does not rule out the existence of a duty of care as it relates to Ocwen’s conduct in this case. In the context of a lender-borrower relationship, courts have held that some activities are not protected by a duty of care. See McCarty v. GCP Mgmt., LLC, No. CIV 10-00133 JMS/KSC, 2010 WL 4812763, at *2 (D. Haw. Nov. 17, 2010) (finding no duty of care arising from lender negligently “ma[king] loans they knew Plaintiffs would be unlikely to repay”); Champlaie v. BAC Home Loans Servicing, LP, 706 F.Supp.2d 1029, 1061 (E.D. Cal. 2009) (finding no duty of care when lender “place[s] borrowers in a loan, even where there was a foreseeable risk borrowers would be unable to repay”); Nymark v. Heart Fed. Savings & Loan Ass’n, 231 Cal.App.3d 1089, 1096, 283 Cal. Rptr. 53 (Ct. App. 1991) (finding no duty of care when lender “apprais[es] the borrower’s collateral to determine if it is adequate security for a loan”); Wagner v. Benson, 101 Cal.App.3d 27, 161 Cal. Rptr. 516, 521 (Ct. App. 1980) (finding no duty of care by lender to “ensure that borrower will use borrowed money wisely”). Yet none of these courts addressed the situation at hand here, where a lender uses the borrower’s personal phone number without consent and places a voluminous number of calls regarding the debt. In effect, “Defendant went beyond its role as a lender to become an aggressive debt collector, calling Plaintiff 1,053 times.” (Pl.’s Opp. at 4, Dkt. 35). Arguably, such repeated and nonconsensual conduct does not fall within the typical “scope of [a lender’s] conventional role as a mere lender of money,” and could therefore warrant the imposition of a duty of reasonable care. Cf. Mercury Sav. & Loan Ass’n, 225 Cal.App.3d 1458, 1469, 275 Cal. Rptr. 871 (1990) (“[A] creditor has a qualified privilege to protect its economic interest, though that privilege may be lost if the creditor uses outrageous and unreasonable means in seeking payment.”); see also Colorado Capital v. Owens, 227 F.R.D. 181, 189 (E.D.N.Y. 2005) (finding that credit-card issuers owe a duty of care to customers in the collection of debts). In cases concerning debt collection, some courts have declined to find a duty of care when the lender’s conduct appeared to fall within the “scope of [their] conventional role as a mere lender of money.” See Inzerillo v. Green Tree Servicing LLC, No. 13-CV06010-MEJ, 2014 WL 1347175, at *6 (N.D. Cal. Apr. 3, 2014) (finding that “Plaintiff’s allegations show only that Defendant acted as a loan servicer seeking to collect on a debt”); Sepehry–Fard v. 17 1 2 3 4 Dep’t Stores Nat’l Bank, No. 13-CV-03131-WHO, 2013 WL 6574774, at *2 (N.D. Cal. Dec. 13, 2013) (finding that complaint alleged no facts showing that Defendant “went beyond the domain of a creditor seeking to collect on a debt”). Quinones, by contrast, adequately alleges that Defendant’s debt collection calls went beyond the pale, and constituted harassing and abusive behavior that exceeded the normal domain of a lender collecting on a debt. 5 Quinones v. Ocwen Loan Servicing, LLC, No. 17-03536 DPP-PLAX, 2017 WL 4641083, at *3 6 (C.D. Cal. Oct. 16, 2017); see also Garcia v. Ocwen Loan Servicing, LLC, Case No. CV 17-3514- 7 R, 2017 U.S. Dist. LEXIS 181337, at *4 (C.D. Cal. Oct. 31, 2017) (finding that a duty existed 8 because “[d]efendant’s attempt to collect on an alleged debt by calling plaintiff’s personal cell 9 phone more than 1,600 times may well exceed the scope of Defendant’s conventional role in the 10 11 loan context.”). The undersigned finds the reasoning of the court in Quinones to be persuasive where, as in 12 the cases pending before this court, it is alleged that the defendant’s conduct was extreme and 13 “beyond the pale.” Here, defendant Ocwen’s alleged conduct of calling plaintiffs between 1,000 14 to 2,000 times within the span of five years, including sometimes calling plaintiffs persistently 15 every day for an entire week or month at a time, would appear to constitute the type of “harassing 16 and abusive behavior that exceed[s] the normal domain of a lender collecting on debt.” 17 Quinones, 2017 WL 4641083, at *3. 18 adequately alleged a duty of care and that their negligence claims against defendant survive a 19 motion to dismiss. 20 Therefore, the undersigned concludes that plaintiffs have 3. Punitive Damages 21 A plaintiff may generally recover punitive damages if the defendant has acted with 22 “oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). “Malice” has been defined as “conduct 23 which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is 24 carried on by the defendant with a willful and conscious disregard of the rights or safety of 25 others.” Cal. Civ. Code § 3294(c)(1). In this regard, a court may exercise its discretion to 26 increase an award up to three times the amount otherwise available under the statute should it find 27 that the defendant “willingly or knowingly” violated the TCPA. 47 U.S.C. § 227(b)(3)(C). A 28 “[d]efendant willfully or knowingly violates the TCPA where plaintiff notifies defendant to stop 18 1 calling and defendant disregards the request.” Sapan v. Auth. Tax. Servs., LLC, No. 13CV2782 2 JAH (JLB), 2014 WL 12493282, at *2 (S.D. Cal. July 15, 2014); see also Onley v. Progressive 3 Cas. Ins. Co., 993 F. Supp. 2d 1220, 1227 (S.D. Cal. 2014); Harris v. World Financial Network 4 Nat. Bank, 867 F. Supp. 2d 888, 895 (E.D. Mich. 2012). 5 The undersigned finds plaintiffs have alleged sufficient facts in their operative complaints 6 with respect to punitive damages. Specifically, plaintiffs allege that that defendant called their 7 cell phone between 1,000 to 2,000 times over the course of five years. (FAC ¶¶ 26–31.) Some 8 plaintiffs received persistent calls every day for a week or even an entire month at a time. (See, 9 e.g., id. at ¶ 31 (noting that, plaintiff Brandt was called everyday between October 1, 2015 and 10 October 28, 2015 for a total of 34 calls).) Additionally, all plaintiffs allege that no prior express 11 consent was given for these calls, and even if prior consent existed, they had orally revoked such 12 consent, but nonetheless continued to receive phone calls from defendant. (Id. at ¶¶ 32–36.) 13 Plaintiffs need not allege more to pursue enhanced damages. See Franklin, 2017 WL 4922380, at 14 *3 (finding that plaintiff’s allegations with respect to punitive damages were sufficient where 15 defendant allegedly called plaintiff over 1,403 times within the span of four years, which included 16 twelve calls made within a three-day period); see also Quinones, 2017 WL 4641083, at *4 17 (declining to dismiss plaintiff’s request for punitive damages given the early stage of the 18 proceedings and concluding that taking plaintiff’s allegations as true, that defendant had engaged 19 in conscious disregard of plaintiff’s rights “by calling him over 1,000 times over a five-year 20 period, despite his lack of prior consent and express requests to stop the calls.”). 21 22 Accordingly, defendant’s motion to dismiss plaintiffs’ prayer for punitive damages will be denied. 23 4. Standing 24 “A suit brought by a plaintiff without Article III standing is not a ‘case or controversy,’ 25 and Article III federal courts lack subject matter jurisdiction over such suits.” City of Oakland v. 26 Lynch, 798 F.3d 1159, 1163 (9th Cir. 2004). To satisfy Article III’s standing requirements, a 27 plaintiff must show: 28 ///// 19 1 (1) they have suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” 2 3 4 5 Friends of the Earth, Inc. v. Laidlaw Envtl. Sys. (TOC), Inc., 528 U.S. 167, 180–81 (2000); see 6 also Buno v. Norton, 371 F.3d 543, 546 (9th Cir. 2004). The Supreme Court has affirmed that “Article III standing requires a concrete injury even 7 8 in the context of a statutory violation.” Spokeo v. Robins, ___U.S.___, 136 S. Ct. 1540, 1549 9 (2016). However, this does not mean an injury-in-fact is established merely because Congress 10 has conferred a statutory right. Rather, while a plaintiff can allege intangible harms to satisfy the 11 injury-in-fact requirement, a plaintiff cannot allege a “bare procedural violation divorced from 12 any concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. 13 Here, defendant Ocwen argues that plaintiffs do not have standing under the TCPA 14 because they have not demonstrated a concrete injury-in-fact from the phone calls alleged in their 15 first amended complaints. (Doc. No. 20-1 at 14.) Rather, defendant contends that plaintiffs’ 16 allegations reflect the type of bare procedural violations rejected as providing a basis for Article 17 III standing by the Supreme Court in Spokeo because they are not connected to any concrete harm 18 and that the mere disruption of plaintiffs’ daily lives is insufficient to confer standing under the 19 TCPA. (Id. at 15–16.) Defendant’s argument is unpersuasive under binding Ninth Circuit 20 authority. 21 In this regard, the Ninth Circuit has expressly rejected defendant’s argument in Van 22 Patten, 847 F.3d at 1043. There, the court noted that by enacting the TCPA, “Congress identified 23 unsolicited contact as a concrete harm, and gave consumers a means to redress this harm.” Id. 24 As such, “[a] plaintiff alleging a violation under the TCPA ‘need not allege any additional harm 25 beyond the one Congress has identified.’” Id. (quoting Spokeo 136 S. Ct at 1549) (emphasis in 26 original) (noting that “[u]nsolicited telemarking phone calls or text messages, by their nature, 27 invade the privacy and disturb the solitude of their recipients.”). 28 ///// 20 1 Here, the injuries plaintiffs allege include disruption to their daily lives and missed 2 communications from friends and family. (FAC ¶¶ 41–43.) In light of the Ninth Circuit’s 3 holding in Van Patten, the court finds plaintiffs’ allegations concerning defendant’s making of 4 over 1,000 incessant phone calls within a span of five years (id. at ¶¶ 26–31) to be sufficient to 5 allege a concrete injury-in-fact under the TCPA. See Quinones, 2017 WL 4641083, at *2 (“At 6 the pleading stage, Quinones has adequately set forth an adequate injury caused by defendant’s 7 recurring debt collection calls, to which he claims he did not consent.”); see also Crooks, 2017 8 WL 4541742, at *5 (noting that the unsolicited calls made by defendant and disruption to 9 plaintiff’s daily life was “sufficient to establish a concrete, particularized injury-in-fact resulting 10 from defendant’s alleged calls.”); Brinker v. Normandin’s, No. 5:14-CV-03007-EJD, 2017 WL 11 1425916, at *2 (N.D. Cal. Apr. 21, 2017) (same); Flores v. Access Ins. Co., Case No. 2:15-cv- 12 02883-CAS(AGRx), 2017 WL 986516, at *5 (C.D. Cal. Mar. 13, 2017) (same). Defendant’s 13 alleged behavior reflects the very invasion of privacy Congress intended to prohibit by enacting 14 the TCPA. 15 16 Therefore, the court will also deny defendant’s motion to dismiss plaintiffs’ TCPA claims on standing grounds. 17 CONCLUSION 18 For all of the reasons stated above: 19 1. Defendant’s motions to stay are denied in all of the above listed related cases; 20 2. Defendant’s motions to dismiss are denied in all of the above listed related cases given 21 the court’s findings that: 22 a. The statute of limitations for plaintiffs’ state law claims under the Rosenthal 23 Act and negligence are tolled under the continuing violations doctrine; 24 b. Plaintiffs have adequately alleged a duty of care to maintain a negligence 25 claim; 26 c. Plaintiffs have adequately alleged facts supporting the award of punitive or 27 28 enhanced damages; and ///// 21 1 d. Plaintiffs have adequately alleged a concrete injury-in-fact under the TCPA 2 3 sufficient for purposes of standing. 3. Defendant shall file its response to the operative complaints in these related actions 4 within twenty-one days of the date of service of this order; and 5 4. These related cases are referred to the assigned magistrate judge for Initial Scheduling 6 Conference which is currently set for February 14, 2018 at 9:30 a.m. in Courtroom 10. 7 8 9 IT IS SO ORDERED. Dated: November 29, 2017 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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