Robert L. Steinberg v. Provident Funding Associates, L.P.

Filing 22

ORDER GRANTING MOTION TO DISMISS by Judge Jon S. Tigar granting 16 Motion to Dismiss. (wsn, COURT STAFF) (Filed on 12/22/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT L. STEINBERG,

Case No. 15-cv-03743-JST

Plaintiff,
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v.

ORDER GRANTING MOTION TO
DISMISS

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PROVIDENT FUNDING ASSOCIATES,
L.P.,
Defendant.

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United States District Court
Northern District of California

Re: ECF No. 16

This is a putative class action brought by Plaintiff Robert Steinberg against Defendant

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Provident Funding Associates, L.P (“Provident”), alleging claims for breach of contract,

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“unconscionability,” conversion, unjust enrichment, and violation of the Florida Deceptive and

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Unfair Trade Practices Act (“FDUTPA”). Before the Court is Provident’s Motion to Dismiss

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Class Action Complaint and Motion to Strike. ECF No. 16. For the reasons set forth below, the

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Court will grant the Motion to Dismiss and deny the Motion to Strike.

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I.

BACKGROUND

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A.

Allegations in the Complaint

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Plaintiff alleges that he and Provident entered into a written contract “whereby Provident

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agreed to fund and service his mortgage.” ECF No. 1 ¶ 37. Under the loan agreement, payments

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are due to Provident on the 1st of each month. Id. ¶ 16. If payment is not received by the 16th of

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the month, Provident assesses a late fee. Id. According to Plaintiff, “[e]ven when customers

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making their monthly mortgage payment by check or money order submit payment on time,

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Provident assesses a late fee.” Id. ¶ 18.

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On February 7, 2015, Plaintiff’s wife, who is also a signatory to the loan agreement,

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mailed their February mortgage payment to Provident via regular mail. Id. ¶ 19. On February 18,

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2015, Plaintiff’s wife received a telephone call from Provident informing her that Provident had

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not received the mortgage payment for February. Id. ¶ 20. After speaking with a Provident

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representative that same day, Plaintiff’s wife completed the February mortgage payment online.

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Id. ¶ 22. On February 19, 2015, Provident sent a letter to Plaintiff stating that Provident had

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received Plaintiff’s February mortgage check but that it was “unable to apply the funds to

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[Plaintiff’s] account due to the following reason: Payment stop on check.” Id. ¶ 23, Exhibit A.

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Neither Plaintiff nor his wife ever placed a stop payment order on the February mortgage check.

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Id. ¶ 23. Provident subsequently assessed a late fee of approximately $200 on Plaintiff’s account.

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Id. ¶ 24.

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Plaintiff bolsters his own allegations regarding the allegedly fraudulent late fees by quoting
numerous consumer complaints posted online. Id. ¶ 18. For instance, one of the online

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United States District Court
Northern District of California

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complaints claimed that Provident “sent me a late notice when they had check in hand.” Id.

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Another complaint stated: “Provident has ‘lost’ my mailed payments and charged me late fees

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when the payment was mailed with a week to spare.” Id. Still another complaint stated: “Late fee

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is incurred if received after the 16th of the month. I mailed payment on the 9th. Provident said

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they didn’t receive it until the 17th which is BS because I mailed an insurance payment to a

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company in [California] the same day . . . and they received it on the 13th.” Id. A fourth

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complaint “wonder[ed] if [Provident was] just holding onto the checks to purposely make them

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late so that they can charge a late fee.” Id.

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B.

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Pursuant to Federal Rule of Evidence 201, Defendant asks the Court to take judicial notice

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of (1) a November 29, 2011 Note (the “mortgage loan agreement”) between Plaintiff and Bank of

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Texas, which loan agreement Defendant asserts forms the basis of Plaintiff’s claims; (2) a

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November 29, 2011 Purchase Money Mortgage between Plaintiff and Bank of Texas; and (3) a

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May 20, 2015 Satisfaction of Mortgage between Plaintiff and Defendant. ECF No. 17. Plaintiff

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does not oppose Defendant’s request for judicial notice. ECF No. 18. The Court grants judicial

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notice of the November 29, 2011 mortgage loan agreement because it is a “document whose

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contents are alleged in a complaint and whose authenticity no party questions, but which [is] not

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physically attached to the [plaintiff’s] pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.

Defendant’s Requests for Judicial Notice

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2005) (internal quotation marks omitted). The Court also grants judicial notice of the second and

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third documents submitted by Defendant, as these documents are both recorded in the official

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records of Monroe County, Florida. See Lee v. City of Los Angeles, 250 F.3d 668, 669 (9th Cir.

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2001) (“[A] court may take judicial notice of ‘matters of public record.’”) (internal quotation

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marks omitted); see also Rosal v. First Fed. Bank of Cal., 671 F. Supp. 2d 1111, 1121 (N.D. Cal.

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2009) (taking judicial notice of “documents recorded in the Official Records of Alameda

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County”).

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C.

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The Court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2).

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II.

Jurisdiction

MOTION TO DISMISS

United States District Court
Northern District of California

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A.

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A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

Legal Standard

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sufficiency of a complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). When

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addressing a motion to dismiss, courts must determine whether a plaintiff has pled “enough facts

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to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007). Courts must accept both the material facts alleged in the complaint and any

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reasonable inferences to be drawn from those facts as true. Navarro v. Block, 250 F.3d 729, 732

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(9th Cir. 2001). But “threadbare recitals of a cause of action’s elements, supported by mere

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conclusory statements” are insufficient bases to support a complaint. Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks

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for more than a sheer possibility that a defendant has acted unlawfully.” Id.

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When any of a complaint’s causes of action allege fraud, Federal Rule of Civil Procedure

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9(b) imposes a heightened pleading standard. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,

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1106 (9th Cir. 2003). This heightened standard requires the complainant to identify “what is false

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or misleading about a statement, and why it is false.” Decker v. GlenFed, Inc., 42 F.3d 1541,

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1548 (9th Cir.1994). In essence, a cause of action governed by Rule 9(b) must include “the who,

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what, when, where, and how” of the allegedly fraudulent conduct. Cooper v. Pickett, 137 F.3d

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616, 627 (9th Cir.1997). Courts must apply this standard to both claims in which fraud is an
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essential element and those in which the complainant “allege[s] a unified course of fraudulent

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conduct and rel[ies] entirely on that course of conduct as the basis of a claim.” Vess, 317 F.3d at

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1103. The heightened pleading standard should not, however, be applied to causes of action

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neither rooted individually in fraud nor attached to a claim in which fraudulent conduct is an

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essential element. Id. at 1105.

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“Where averments of fraud are made in a claim in which fraud is not an element, an

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inadequate averment of fraud does not mean that no claim has been stated. The proper route is to

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disregard averments of fraud not meeting Rule 9(b)’s standard and then ask whether a claim has

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been stated.” Id. (quoting Lone Star Ladies Inv. Club v. Schlotzsky’s Inc., 238 F.3d 363, 368 (5th
Cir. 2001)). “Thus, if particular averments of fraud are insufficiently pled under Rule 9(b), a

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United States District Court
Northern District of California

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district court should ‘disregard’ those averments, or ‘strip’ them from the claim. The court should

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then examine the allegations that remain to determine whether they state a claim.” Id.

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B.

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Analysis1
1.

Breach of Contract

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Plaintiff’s first cause of action is for breach of contract and breach of the covenant of good

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faith and fair dealing. ECF No. 1 ¶¶ 36–41. Generally, “[a] breach of contract claim falls outside

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the reach of Rule 9(b) because such a claim does not require intent to defraud, a false

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representation, or other elements of fraudulent misrepresentation.” Ronpak, Inc. v. Elecs. for

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Imaging, Inc., No. 14-cv-04058-JST, 2015 WL 179560, at *4 (N.D. Cal. Jan. 14, 2015) (citing

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Vess, 317 F.3d at 1105–06). Here, however, Plaintiff alleges that “Provident has breached the

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covenant of good faith and fair dealing in its contracts with Plaintiff and the Class by assessing

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fraudulent late fees and associated penalties.” Id. ¶ 39. Because Plaintiff has made an averment

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of fraud “in a claim in which fraud is not an element, . . . [t]he proper route is to disregard” such

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averment of fraud if it does not meet Rule 9(b)’s standard and “then ask whether a claim has been

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stated” under Rule 8’s more lenient standard. Vess, 317 F.3d at 1105 (quoting Lone Star

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The parties do not dispute that Florida law governs Plaintiff’s claims. See ECF No. 16 at 10;
ECF No. 18 at 11 n.5 (failing to explicitly address which law governs Plaintiff’s claims, but noting
that “the late fees at issue here are sufficiently identifiable under Florida law.”).
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Ladies, 238 F.3d at 368).

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Defendant argues that under either standard of review Plaintiff’s claim must be dismissed

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because “[t]he Complaint lacks a critical, foundational fact: Plaintiff never alleges that Provident

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received the Steinbergs’ late payment within fifteen calendar days of the February 1 due date.”

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ECF No. 16 at 5 (emphasis in original). Rather, “[t]he Complaint alleges only that [Plaintiff’s]

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wife mailed the payment on Saturday, February 7; that Provident claimed not to have received it at

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some point on February 18, and that on February 19, Provident returned the check along with a

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form letter stating that the check could not be cashed due to a stop payment.” ECF No. 16 at 5–6

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(citing ECF No. 1 ¶¶19–23). According to Defendant, Plaintiff’s failure to allege when payment
was received by Defendant is fatal to Plaintiff’s breach of contract claim because that claim

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United States District Court
Northern District of California

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“depends on the theory that Plaintiff’s payment was timely received.” ECF No. 16 at 6 (quoting

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ECF No. 1 at ¶ 39 (alleging that Provident “breached the covenant of good faith and fair dealing . .

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. by assessing fraudulent late fees and associated penalties.”).

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The Court agrees with Defendant’s argument in this respect. Plaintiff’s breach of contract

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claim is premised on a loan agreement between Plaintiff and Bank of Texas,2 which provides: “If

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the Note Holder has not received the full amount of any monthly payment by the end of 15

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calendar days after the date it is due, I [the borrower] will pay a late charge to the Note Holder.”

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ECF No. 17-1 at §6(A) (emphasis added). However, Plaintiff does not allege in the Complaint

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when Defendant received his February payment. See ECF No. 1 ¶¶ 19–23. It does not require the

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formal exercise of judicial notice to observe that sometimes, when an item of correspondence is

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mailed, it does not reach its destination. While Plaintiff does allege that his wife mailed the

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February mortgage payment check on February 7, 2015, id. ¶ 19, Plaintiff has not pled facts upon

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which the Court can draw a reasonable inference that Defendant breached the loan agreement by

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charging Plaintiff a late fee despite its having received payment by February 16, 2015. See ECF

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No. 17-1 at §6(A).
Plaintiff’s arguments to the contrary are unpersuasive. First, Plaintiff argues that the Court

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The servicing of Plaintiff’s mortgage appears to have been transferred to Defendant in August
2013. See ECF No. 1 ¶ 6; ECF No. 16 at 2.
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should apply a presumption that mail is received within 3 days of its mailing. ECF No. 18 at 2–3.

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However, none of the cases cited by Plaintiff stand for this proposition. Indeed, most of the cases

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cited by Plaintiff involved application of what was then Fed. R. Civ. P. 6(e) (now Fed. R. Civ. P.

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6(d)), which provided: “Whenever a party has the right or is required to do some act or take some

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proceedings within a prescribed period after the service of a notice or other paper upon the party

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and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed

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period.” The rule does not create a legal presumption that mail is received within 3 days of its

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mailing, and by its terms does not apply in this case, since no deadline here is alleged to be

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triggered by “the service of a notice or other paper.” Accordingly, the Court rejects Plaintiff’s

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United States District Court
Northern District of California

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argument in this respect.
Second, Plaintiff argues that the Complaint “includes a number of internet postings by

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other consumers who have gone through the same experience with Provident, in some cases

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mailing their payments more than two weeks prior to expiration of the grace period.” ECF No. 18

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at 3. According to Plaintiff, these complaints “illustrate that Provident is doing the same thing it

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did to [Plaintiff] to others . . . .” Id. at 3–4. However, these complaints suffer from the same fatal

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deficiency as Plaintiff’s own allegations: they fail to provide the Court with sufficient facts from

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which the Court could draw a reasonable inference that Defendant breached its contract with the

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complainants because none of the complaints sufficiently allege that Defendant received a

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mortgage payment before the due date. Rather, the online complaints merely claim that a

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mortgage check was sent in a “timely” fashion and that Defendant nonetheless assessed a late

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charge. See, e.g., ECF No. 1 at 6 (“Provident has ‘lost’ my mailed payments and charged me late

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fees when the payment was mailed with a week to spare.”); id. at 8 (Provident “claim[s] not to

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have received my check twice that I mailed on time each month.”); id. at 9 (“We mailed our

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mortgage in a timely fashion. . . . I wonder if they’re just holding onto the checks to purposely

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make them late so that they can charge a late fee.”); id. at 9 (“In October, I mailed my check at the

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post office on the 4th and it was not credited until the 19th.”); id. at 10 (“I used to mail my

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payment by [the 8th or 10th] of each month as it is due by the 16th. We have noticed that, at least

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once a year, [Provident] ask[s] us to pay $50 penalty for late charge. . . . We strongly believe that
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[Provident], even if they receive the payment before the 16th, they accuse the post office for

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delivering it late.”).3
Therefore, the Court grants Defendant’s motion to dismiss Plaintiff’s first cause of action

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for breach of contract and breach of the covenant of good faith and fair dealing without prejudice.

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2.

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Unconscionability, Conversion, Unjust Enrichment, and Violation of
FDUTPA

Plaintiff also brings claims for “unconscionability,” conversion, unjust enrichment, and
violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §

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501.201, et seq. ECF No. 1 ¶¶47–73. As Defendants note, however, each of these claims is
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United States District Court
Northern District of California

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premised on the same allegedly fraudulent conduct as Plaintiff’s breach of contract claim, namely
Defendant’s alleged practice of fraudulently collecting late fees. ECF No. 1 ¶ 43
(unconscionability) (“Provident’s late fee policies and practices are substantively and procedurally
unconscionable . . . .”); id. ¶ 49 (conversion) (“Provident has wrongfully collected late fees from
Plaintiff and the Class . . . .”); id. ¶60 (unjust enrichment) (“Provident . . . retain[ed] benefits it

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received, and is still receiving, without justification, from the imposition of fraudulent late fees on
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Plaintiff and the Class . . . .”); id. ¶ (FDUTPA) (“Provident’s conduct, as alleged herein,
constitutes unconscionable, unfair, and deceptive acts or practices in violation of the DUTPA.”)

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As discussed above, Plaintiff has failed to sufficiently allege that Defendant charged Plaintiff a
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late fee in violation of the loan agreement. Plaintiff does not attempt to plead any other wrongful
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or fraudulent conduct committed by Defendant in relation to the imposition of late fees. 4 Nor does

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The Court denies Defendant’s motion to strike the online complaints from the Complaint. ECF
No. 16 at 8–9. While the Court concludes that these complaints are not sufficient to satisfy Rule
8’s pleading standard, the Court does not find that these complaints are “redundant, immaterial,
impertinent or scandalous.” Fed. R. Civ. P. 12(f); see also Colaprico v. Sun Microsystems, Inc.,
758 F. Supp. 1335, 1339 (N.D. Cal. 1991) (“Motions to strike should not be granted unless it is
clear that the matter to be stricken could have no possible bearing on the subject matter of the
litigation.”). Both Plaintiff and the online complaints allege that Defendant conducted similar
fraudulent conduct related to the imposition of late fees, and thus the Court cannot conclude that
these online complaints will have “no possible bearing on the subject matter of the litigation.” Id.
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Plaintiff does allege that “after a customer places a stop payment order on his or her mortgage
check in reliance on Provident’s representation that the check was never received, Provident will
attempt to cash the check and then, after the bank declines, assess further monetary penalties and
fees upon the customer.” ECF No. 1 ¶ 4. This theory, however, is never developed in the
Complaint, nor in Plaintiff’s briefing. Moreover, Plaintiff admits that “[n]either Plaintiff nor his
wife ever placed a stop payment order” on their February 2015 mortgage check. Id. ¶ 23.
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Plaintiff offer any argument why the Court should not dismiss these claims upon a finding that

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Plaintiff has not sufficiently pleaded a violation of the terms of the loan agreement. See ECF No.

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18 at 10–18. Accordingly, the Court dismisses Plaintiff’s claims for conversion, unjust

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enrichment, and violation of the FDUTPA with leave to amend. For reasons discussed below, the

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Court dismisses Plaintiff’s claim for “unconscionability” without leave to amend.5

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3.

Unconscionability

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Plaintiff alleges that “Provident’s late fee policies and practices are substantively and

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procedurally unconscionable.” ECF No. 1 ¶ 20. The parties dispute (1) whether unconscionability

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is a cause of action under Florida law, as opposed to an affirmative defense; and (2) whether such
a claim can seek damages. See ECF No. 16 at 11–12; ECF No. 18 at 5–8. The Court need not

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United States District Court
Northern District of California

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address these arguments, however, because Plaintiff’s claim suffers from an even more basic

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deficiency.

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As a case relied upon by Plaintiff notes, to succeed on a claim of unconscionability under

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Florida law, Plaintiff must demonstrate both procedural and substantive unconscionability. In re

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Checking Account Overdraft Litigation, 694 F. Supp. 2d 1302, 1319 (S.D. Fla. 2010). Substantive

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unconscionability, in turn, “requires an assessment of whether the contract terms are so

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outrageously unfair as to shock the judicial conscience.” Id. (quoting Bland v. Health Care & Ret.

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Corp. of Am., 927 So. 2d 252, 256 (Fla. Dist. Ct. App. 2006)) (emphasis added). Plaintiff’s

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unconscionability claim, however, is premised not on an outrageously unfair contract term, but

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rather on “Provident’s late fee policies and practices.” ECF No. 1 ¶ 43 (“Provident does not

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disclose . . . its policy of deliberately denying or delaying receipt of mortgage payments in order to

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impose late fees [and] refuses to waive fraudulently imposed late fees . . . .”); see also id. ¶ 44

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(“The imposition of fraudulent late fees and associated monetary penalties is itself

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unconscionable.”). While Plaintiff attempts to re-characterize his unconscionability claim as

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The Court need not address the additional, independent reasons why Defendant argues these
claims should be dismissed. See ECF No. 16 at 13–16. The Court will address these arguments if
and when Plaintiff cures the deficiencies in the Complaint identified here and Defendant raises
these arguments again in a subsequent motion to dismiss.
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challenging Provident’s “enforce[ment] of the Challenged Provision,”6 Plaintiff fails to cite any

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authority for the proposition that the enforcement of a contractual provision can itself be

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unconscionable, as opposed to a breach of the underlying contract.
Accordingly, the Court dismisses Plaintiff’s unconscionability claim because Plaintiff has

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failed to allege any contract term which is allegedly “so outrageously unfair as to shock the

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judicial conscience.” In re Checking Account Overdraft Litigation, 694 F. Supp. 2d at 1319.

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Because the Court finds that amendment of this claim would be futile, the Court dismisses

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Plaintiff’s unconscionability claim it with prejudice.

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4.

Standing to Pursue Injunctive Relief

“Standing must be shown with respect to each form of relief sought, whether it be

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United States District Court
Northern District of California

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injunctive relief, damages or civil penalties.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985

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(9th Cir. 2007) (citing Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S.

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167, 185 (2000)). “In a class action, standing is satisfied if at least one named plaintiff meets the

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requirements.” Id. “The standing formulation for a plaintiff seeking prospective injunctive relief”

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requires the plaintiff to “demonstrate that he has suffered or is threatened with a ‘concrete and

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particularized’ legal harm, coupled with ‘a sufficient likelihood that he will again be wronged in a

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similar way.’” Id. (internal citation omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S.

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555, 560 (1992)). “As to the second inquiry, [Plaintiff] must establish a ‘real and immediate threat

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of repeated injury.’” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)).

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Defendant argues that Plaintiff lacks standing to bring any claim seeking injunctive or

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declaratory relief because Plaintiff “paid off his mortgage in full prior to filing his Complaint”

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and, as a result, Provident could not “assess any late charges going forward.” ECF No. 16 at 17.

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Plaintiff does not dispute that he has paid of his mortgage in full. ECF No. 18 at 18–20. Instead,

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Plaintiff argues that he has standing to seek injunctive relief because “Plaintiff has not alleged that

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he would not consider entering into another mortgage with Defendant in the event Defendant

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Plaintiff defines the “Challenged Provision” as the provision of the loan agreement under which
“Plaintiff agreed to Provident’s assessment of a late fee if his mortgage payment was not received
within 15 days of its due date.” ECF No. 18 at 6–7.
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changes its unlawful practices.” Id. at 20. The Court finds that such allegations do not establish a

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“real and immediate threat of repeated injury.” O’Shea, 414 U.S. at 496; see also Opperman v.

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Path, Inc., 84 F. Supp. 3d 962, 988 (N.D. Cal. 2015).7 Accordingly, Plaintiff’s prayer for

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injunctive relief is dismissed without prejudice for lack of standing.
5.

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Joinder of Required Party

Finally, Defendant argues that the Complaint should be dismissed under Fed. R. Civ. P.

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12(b)(7) for failure to join Plaintiff’s wife as a required party. “[T]o determine whether dismissal

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is appropriate, the Court engages in ‘three successive inquiries.’” Edwards v. Fed. Home Loan

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Mortgage Corp., No. 12-cv-04868-JSW, 2012 WL 5503532, at *3 (N.D. Cal. Nov. 13, 2012)

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(quoting EEOC v. Peabody Western Coal Co., 400 F.3d 774, 779 (9th Cir. 2005)). “First, the

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Northern District of California

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district court must determine whether the absent party is a ‘required’ party.” Id. A party is

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“required” under Fed. R. Civ. P. 19(a)(1) if: “(A) in that person’s absence, the court cannot accord

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complete relief among existing parties; or (B) that person claims an interest relating to the subject

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of the action and is so situated that disposing of the action in the person’s absence may: (i) as a

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practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an

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existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent

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obligations because of the interest.”
The Court agrees with Defendant’s argument that because Plaintiff’s wife is a signatory to

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Each of the cases relied on by Plaintiff to support a finding of standing is inapposite. See, e.g.
Fortyune v. Am. Multi-Cinema, Inc., No. 10-cv-5551, 2002 WL 32985838, at *7 (C.D. Cal. Oct.
22, 2002) (“Because Plaintiff and his wife frequent the theater and the lack of accommodation
continues to exist, the court finds that Plaintiff has established a likelihood of future injury.); Ries
v. Ariz. Beverages USA LLC, 287 F.R.D. 523, 533 (N.D. Cal. 2012) (“[T]he record is devoid of
any grounds to discount plaintiffs’ stated intent to purchase in the future, thereby satisfying the
requisites for standing.”). While Henderson v. Gruma Corp. provides some support for Plaintiff’s
argument, that case is distinguishable because the Court’s finding of a lack of standing here would
not “allow an alleged wrongdoer to evade the court’s jurisdiction so long as he does not injure the
same person twice,” as the Henderson court found. No. 10-cv-4173, 2011 WL 1362188, at *7
(C.D. Cal. Apr. 11, 2011) (quoting Fortyune, 2002 WL 32985838, at *7). Likewise, while
Koehler v. Litehouse, Inc., No. 13-cv-3482, 2014 WL 325241-SI (N.D. Cal. Dec. 13, 2012)
provides some support for Plaintiff’s argument, Defendant notes that Judge Illston subsequently
disavowed the reasoning in Koehler and instead held that “to establish standing, plaintiff must
allege that he intends to” act in such a way that he may be harmed in the future if not for the
requested injunctive relief. Rahman v. Mott’s LLP, No. 13-cv-3482, 2014 WL 325241, at *10 &
n. 9 (N.D. Cal. Jan. 29, 2014). Plaintiff, here, has not alleged that he intends to obtain another
mortgage from Defendant.
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the loan agreement, “[u]nless she appears, there can be no guarantee she will not sue Provident

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over the same alleged wrongdoing in a separate lawsuit or in another forum.” ECF No. 16 at 17–

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18. As a result, Provident “faces a substantial risk of double, multiple, or otherwise inconsistent

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obligations.” Id. at 18. Accordingly, the Court concludes that Plaintiff’s wife is a “required”

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party in this action. See Edwards, 2012 WL 5503532, at *3 (finding husband of Plaintiff a

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“required” party because “Defendants have a substantial risk of incurring double, multiple, or

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otherwise inconsistent obligations by reason of Plaintiff’s and [her husband’s] mutual interests

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relating to the Property.”).8
Second, because Plaintiff’s wife is a “required” party, the Court must determine whether

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joinder is feasible. Id. at *4. Under Rule 19(a), “joinder is not ‘feasible’ when: (1) venue is

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Northern District of California

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improper; (2) the absentee party is not subject to personal jurisdiction; and (3) when joinder would

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destroy subject matter jurisdiction.” Id. Defendants do not argue, and the Court finds no reason to

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suggest, that joinder of Plaintiff’s wife would not be feasible.9 Accordingly, if Plaintiff elects to

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file an amended complaint, he must join his wife as a party.
CONCLUSION

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For the foregoing reasons, the Court dismisses with leave to amend Plaintiff’s breach of

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contract, conversion, unjust enrichment, and FDUTPA claims. The Court also dismisses without

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prejudice Plaintiff’s prayer for injunctive relief, as it relates to each of Plaintiff’s claims, for lack

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of standing. The Court dismisses without leave to amend Plaintiff’s “unconscionability” claim. If

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Although Plaintiff seeks to distinguish this case from Edwards because this case involves alleged
consumer fraud, whereas Edwards involved an allegedly wrongful foreclosure, Plaintiff does not
offer any reasoning why this distinction should lead to a different result regarding Plaintiff’s
wife’s status as a required party. ECF No. 18 at 21. Moreover, Plaintiff cites no authority
suggesting that a plaintiff’s spouse is not a required party “in a class action alleging consumer
fraud when the alleged damages affected a shared account.” Id.
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As the Edwards court noted, “[t]he third inquiry is whether in ‘equity and good conscience’ the
action can continue without the absent party. However, courts only engage in this inquiry if the
absent party is necessary and joinder is not feasible.” 2012 WL 5503532, at *4 n.3 (citation
omitted).
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Plaintiff elects to file an amended complaint, Plaintiff shall join his wife as a plaintiff, and shall

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file the amended complaint within 30 days of this order.

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IT IS SO ORDERED.
Dated: December 22, 2015

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______________________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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