Fishman v. Tiger Natural Gas, Inc.

Filing 245

ORDER GRANTING TIGER'S MOTION FOR LEAVE TO FILE AMENDED ANSWER TO PLAINTIFFS' THIRD AMENDED COMPLAINT by Judge William Alsup [granting #195 Motion for Leave to File]. Amended answer due by NOON on 11/26/2018. (whasec, COURT STAFF) (Filed on 11/19/2018)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 EMILY FISHMAN and SUSAN FARIA, individually and on behalf of all others similarly situated, 12 13 14 15 16 No. C 17-05351 WHA Plaintiffs, v. ORDER GRANTING TIGER’S MOTION FOR LEAVE TO FILE AMENDED ANSWER TO PLAINTIFFS’ THIRD AMENDED COMPLAINT TIGER NATURAL GAS, INC., an Oklahoma corporation; COMMUNITY GAS CENTER INC., a Colorado corporation; JOHN DYET, an individual; and DOES 3–100, Defendants. 17 / 18 19 In this putative class action for fraudulent telemarketing, defendant gas supplier seeks 20 leave to amend its answer to include additional factual allegations to support its affirmative 21 defenses. 22 The controversy allegedly began when defendant Tiger Natural Gas, Inc., through 23 defendant Community Gas Center Inc. (“CGC”), called each of plaintiffs Emily Fishman and 24 Susan Faria to solicit them to buy natural gas from Tiger through its price protection program. 25 Plaintiffs’ allegations have been summarized in prior orders (see, e.g., Dkt. No. 175). 26 In July 2018, plaintiffs moved to strike Tiger’s affirmative defenses to the operative 27 third amended complaint. A September 18 order granted in part and denied in part plaintiffs’ 28 motion to strike without a hearing, striking thirty-four of Tiger’s thirty-five affirmative 1 defenses. That order gave Tiger until October 4 to file a motion for leave to amend its answer. 2 Tiger timely moved for leave to amend and submitted a proposed amended answer. At oral 3 argument the undersigned judge indicated his tentative view that Tiger asserted too many 4 conclusory affirmative defenses which lacked sufficient facts. Tiger was allowed to submit a 5 new proposed answer, limited to pleading additional relevant facts supporting only those 6 affirmative defenses previously asserted in its proposed amended answer. Tiger timely 7 submitted a second proposed amended answer (Dkt. Nos. 116, 175, 195, 236, 241). 8 The undersigned judge has reviewed the proposed amendments to Tiger’s six operate to bar one or more of plaintiffs’ claims to relief, that can be determined at trial or on a 11 For the Northern District of California affirmative defenses and concludes they are not entirely futile. Although they may or may not 10 United States District Court 9 motion for summary judgment. For present purposes, these defenses have been sufficiently 12 pleaded. Tiger’s motion for leave to amend is GRANTED. This order in no way suggests that 13 Tiger has or will ultimately prevail on any of its affirmative defenses, only that enough 14 plausibility has been shown to allow Tiger the chance to do so. Tiger must file and serve an 15 amended answer that comports with this order by NOVEMBER 26 AT NOON. 16 17 IT IS SO ORDERED. 18 19 Dated: November 19, 2018. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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