Capp v. Nordstrom, Inc.

Filing 10

ORDER to SHOW CAUSE signed by Chief Judge Morrison C. England, Jr on 5/13/13. Defendant is ORDERED to appear before U.S. Chief District Judge Morrison C. England, Jr., in Courtroom 7, 14th floor, in the United States Courthouse, 501 I Street, Sacr amento, California, on Thursday, 7/11/13, at 2:00 p.m., and that Defendant SHOW CAUSE WHY ITS MOTION TO DISMISS SHOULD NOT BE DENIED as not properly before the Court. Alternatively, in the interest of just, speedy, and inexpensive determination of the issues in this case, Fed. R. Civ. P. 1, Defendant may provide a supplemental brief, to be filed and served not less than twenty-eight (28) days before the above hearing date, addressing the following issue: whether Plaintiff states a claim un der Californias Song Beverly Credit Card Act, Cal. Civ. Code § 1747.08. Plaintiff may file and serve an opposition brief not less than fourteen (14) days before the above hearing date. Defendant may file and serve a reply not less than seven (7) days before the above hearing date. Argument may be heard on this issue, and the issues raised in Defendant's motion to dismiss, on Thursday, 7/11/13, at 2:00 p.m. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT CAPP, on behalf of himself
and others similarly situated,
Plaintiff,

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v.

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NORDSTROM, INC. a Washington
Corporation; and DOES 1 through 50,
inclusive,

No. 2:13-cv-00660-MCE-AC

ORDER TO SHOW CAUSE WHY
DEFENDANT’S MOTION TO DISMISS
SHOULD NOT BE DENIED AS NOT
PROPERLY BEFORE THE COURT

Defendants.

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Presently before the Court is Defendant Nordstrom’s (“Defendant”) motion to

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dismiss Plaintiff’s complaint for failure to state a claim under Federal Rule of Civil

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Procedure 12(b)(6). (ECF No. 6.) Review of Defendant’s motion reveals that Defendant

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essentially seeks an advisory opinion that a federal statute preempts a California

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statute—a California statute that Defendant contends does not apply. Specifically,

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Defendant states in its motion:

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This motion addresses the preemptive effect of CAN-SPAM[,
15 U.S.C. § 7704, et seq.,] on Song Beverly email marketing
claims and does not address at this time the question of
whether an email address indeed constitutes personal
identification information under [California Civil Code] Section
1747.08. Nordstrom denies that an email address constitutes
personal identification information. . . . This issue is to be
determined another day.

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(Mot. Dismiss Pl.’s Compl. 4 n.2, ECF No. 6.)
Preemption of a state law by federal statute turns on interpretation of the

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Supremacy Clause of the U.S. Constitution. Thus, under the Ashwander doctrine of

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constitutional avoidance, federal courts should avoid reaching a preemption issue if they

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can resolve the case on statutory grounds. See Norfolk S. Ry. Co. v. City of Alexandria,

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608 F.3d 150, 161 (4th Cir. 2010) (“[W]ere we to pass on the [defendants’] bases for

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preemption, we could offer nothing more than an advisory opinion on potentially difficult

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questions of federalism and constitutional law. . . . The Ashwander doctrine of

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constitutional avoidance—which applies with equal force to preemption claims—cautions

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against any such endeavor.”).

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Moreover, Federal Rule of Civil Procedure 12(g) discourages piecemeal dismissal

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motions: “Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under

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. . . rule [12] must not make another motion under this rule raising a defense or

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objection that was available to the party but omitted from its earlier motion.” Although

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Rule 12(g) does not expressly apply to this circumstance,1 its purpose is directly

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implicated:

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In considering the operation of Rule 12(g), it is advisable to
keep in mind that Rule 12 was drafted by the Advisory
Committee to prevent the dilatory motion practice fostered by
common law procedure and many of the codes under which
numerous pretrial motions could be made, many of them in
sequence—a course of conduct that was pursued often for
the sole purpose of delay. . . .

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Federal Rule of Civil Procedure 12(h) permits defendants to raise a subsequent “failure to state a
claim” defense “by a motion under Rule 12(c).”

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Simply stated, the objective of the consolidation rule is to
eliminate unnecessary delay at the pleading stage.
Subdivision (g) contemplates the presentation of an omnibus
pre-answer motion in which the defendant advances every
available Rule 12 defense and objection he may have that is
assertable by motion. The defendant cannot delay the filing of
a responsive pleading by interposing these defenses and
objections in piecemeal fashion, but must present them
simultaneously.

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5C Charles Alan Wright et al., Federal Practice and Procedure § 1384 “History and

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Purpose of Rule 12(g)” (3d ed. 1998 & Supp. 2013) (emphasis added) (footnotes

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omitted).

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Since addressing Defendant’s preemption argument before its statutory argument

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could result in an improper advisory opinion—if Defendant is correct that California’s

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Song–Beverly Act does not apply—the Court will not address Defendant’s preemption

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argument at this time. Further, since Rule 12(g) discourages piecemeal pretrial motions,

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id., the Court will not allow Defendant to litigate this threshold statutory issue “another

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day”—as it proposes—and seek a ruling on the preemption issue separately.

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CONCLUSION

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For the reasons stated above, Defendant is HEREBY ORDERED to appear

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before United States Chief District Judge Morrison C. England, Jr., in Courtroom 7, 14th

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floor, in the United States Courthouse, 501 I Street, Sacramento, California, on

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Thursday, July 11, 2013, at 2:00 p.m., and that Defendant SHOW CAUSE WHY ITS

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MOTION TO DISMISS SHOULD NOT BE DENIED as not properly before the Court.

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Alternatively, in the interest of “just, speedy, and inexpensive determination” of

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the issues in this case, Fed. R. Civ. P. 1, Defendant may provide a supplemental brief, to

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be filed and served not less than twenty-eight (28) days before the above hearing date,

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addressing the following issue: whether Plaintiff states a claim under California’s Song–

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Beverly Credit Card Act, Cal. Civ. Code § 1747.08.2

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If Defendant elects to file this supplemental brief, it need not appear to show cause why its

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Plaintiff may file and serve an opposition brief not less than fourteen (14) days before the

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above hearing date. Defendant may file and serve a reply not less than seven (7) days

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before the above hearing date. Argument may be heard on this issue, and the issues

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raised in Defendant’s motion to dismiss, on Thursday, July 11, 2013, at 2:00 p.m.

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IT IS SO ORDERED.
DATED: May 13, 2013

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___________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT COURT

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motion to dismiss should not be denied as not properly before the Court.

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