Stemple v. QC Holdings, Inc.

Filing 105

ORDER granting 101 Unopposed Motion for Leave to File First Amended Complaint, granting 103 Ex Parte Application to File Documents Under Seal. Plaintiff is ordered to file the First Amended Complaint attached as Exhibit A to its motion no later t han 4/4/2016. The Court GRANTS Plaintiff's ex parte motion to seal Exhibit C to the Declaration of Bill Elvin, which is part of Exhibit 2 to the Declaration of Abbas Kazerounian filed in support of the motion for preliminary approval. Signed by Judge Cynthia Bashant on 3/31/16. (kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAUL STEMPLE,
Plaintiff,

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ORDER:

v.

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Case No. 12-cv-01997-BAS(WVG)

(1) GRANTING UNOPPOSED
MOTION FOR LEAVE TO
FILE FIRST AMENDED
COMPLAINT; AND

QC HOLDINGS, INC.,

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Defendant.

(2) GRANTING EX PARTE
APPLICATION TO FILE
DOCUMENTS UNDER SEAL

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(ECF Nos. 101, 103)

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Presently before the Court is an unopposed motion for leave to file a First

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Amended Complaint for Damages and Injunctive Relief Pursuant to the Telephone

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Consumer Protection Act, 47 U.S.C. §§ 227, et seq. (ECF No. 101),1 and an ex parte

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motion to file documents under seal in support of Plaintiff’s motion for preliminary

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approval of nationwide class action settlement (ECF No. 103).

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For the reasons set forth below, the Court GRANTS the unopposed motion for

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leave to file a First Amended Complaint for Damages and Injunctive Relief Pursuant

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The Court finds this motion suitable for determination on the papers
submitted and without oral argument. See Civ. L.R. 7.1(d)(1).
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to the Telephone Consumer Protection Act, 47 U.S.C. §§ 227, et seq., and GRANTS

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the ex parte motion to seal.

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I.

BACKGROUND

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Plaintiff Paul Stemple (“Plaintiff”) commenced this putative class action

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against defendant QC Holdings, Inc. (“Defendant”) on August 13, 2012 alleging (1)

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negligent and (2) knowing and/or willful violations of the Telephone Consumer

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Protection Act (“TCPA”), 47 U.S.C. §§ 227, et seq. (ECF No. 1.) On September 5,

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2014, the Court granted in part and denied in part Plaintiff’s motion for class

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certification, certifying the following class pursuant to Federal Rule of Civil

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Procedure 23(b)(3):
All persons whose 10-digit cellular telephone numbers with a
California area code were listed by an account holder in the
Employment and/or Contacts fields, but were not listed in the Personal
fields, of a California customer loan application produced to
[Defendant], which were called by [Defendant] using an ATDS and/or
an artificial or prerecorded voice for the purpose of collecting or
attempting to collect an alleged debt from the account holder, between
August 13, 2008 and August 13, 2012.

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(See ECF No. 75 at pp. 15, 18.)

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On March 20, 2015, the Court denied Defendant’s motion for reconsideration

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of the Court’s class certification order and stayed this case for ninety (90) days to

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allow time for a jointly agreed-upon mediation. (ECF No. 89.) After the Court lifted

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the stay, on October 2, 2015, Plaintiff filed a Notice of Settlement on a Class Basis.

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(See ECF Nos. 98, 99.) On December 18, 2015, Plaintiff filed an unopposed motion

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for leave to file a First Amended Complaint (“FAC”), a motion for preliminary

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approval of nationwide class action settlement and certification of settlement class,

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and an ex parte motion to file documents under seal in support of Plaintiff’s motion

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for preliminary approval. (See ECF Nos. 101, 102, 103.) The Court will address the

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motion for preliminary approval in a separate order.

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///
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II.

DISCUSSION

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A.

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As part of the settlement agreement reached by the parties, Plaintiff moves this

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Court for leave to file a FAC. (ECF No. 101. at p. 2, ¶ 7.) According to Plaintiff,

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the proposed FAC, attached as Exhibit A to the motion, alleges that Plaintiff “is

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seeking to represent a nationwide class of persons defined consistent with the form

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of the California-only class definition certified by this Court in its September 5, 2014

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Order. . . . The proposed [FAC] also modifies some of the previous allegations to

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conform to the evidence obtained in this action.” (Id. at pp. 2-3, ¶ 8.) Plaintiff

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represents that Defendant does not oppose the motion, and that the request will not

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delay proceedings because Plaintiff filed a motion for preliminary approval of the

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parties’ agreed-upon settlement the same day. (Id. at p. 3, ¶ 9.)

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Unopposed Motion for Leave to File a First Amended Complaint

In the proposed FAC, Plaintiff brings a nationwide class action on behalf of
himself and all others similarly situated, consisting of:

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All persons or entities within the United States whose 10-digit cellular
telephone numbers were listed by an account holder in the Employment
and/or Contacts fields, but were not listed in the Personal fields, of a
customer loan application produced to Defendant, and who were called
by Defendant using an ATDS and/or an artificial or prerecorded voice
for the purpose of collecting or attempting to collect an alleged debt
from the account holder, between August 13, 2008 and August 13,
2012.

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(ECF No. 101, Exh. A, ¶ 20.) Plaintiff again alleges (1) negligent and (2) knowing

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and/or willful violations of the TCPA. (See id.)

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Pursuant to the scheduling order issued in this case, any motion to amend the

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pleadings was to be filed no later than November 3, 2014. (ECF No. 79 at p. 1.)

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After a scheduling order has been issued setting a deadline to amend the pleadings

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and a party moves to amend the pleadings after the deadline, the motion amounts to

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one to amend the scheduling order and thus is properly brought under Federal Rule

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of Civil Procedure 16(b). See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
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607-08 (9th Cir. 1992).

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Under Rule 16, a scheduling order “may be modified only for good cause and

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with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The decision to modify a

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scheduling order is within the broad discretion of the district court. Johnson, 975

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F.2d at 607 (citation omitted). If good cause is shown, the court proceeds to consider

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the requirements of Federal Rule of Civil Procedure 15(a). Id. at 608 (citing

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approvingly Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C.1987), for its

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explication of this order of operations); C.F. v. Capistrano Unified School Dist., 656

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F.Supp.2d 1190, 1192 (C.D. Cal. 2009). After a responsive pleading is filed, leave

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to amend should be granted under Rule 15(a) “unless amendment would cause

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prejudice to the opposing party, is sought in bad faith, is futile, or creates undue

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delay.” Id. at 607.

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Having reviewed and considered the moving papers, the Court finds good

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cause to modify the scheduling order and finds that granting leave to amend will not

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cause prejudice to the opposing party, and that the proposed amendment is not sought

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in bad faith, futile, or create undue delay.

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Plaintiff’s motion for leave to file the FAC in the form attached to the motion.

Accordingly, the Court GRANTS

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B.

Ex Parte Motion to Seal

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As part of the parties’ motion for preliminary approval of the class action

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settlement, Plaintiff intends to rely upon a declaration from a representative of

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Defendant, which includes the complete cellular telephone numbers of the certified

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California-only class. (ECF No. 103 at p. 1.) Arguing the numbers constitute

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personal information or personally identifiable information that could be misused if

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made public, Plaintiff seeks permission to file under seal Exhibit C to the Declaration

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of Bill Elvin, which is part of Exhibit 2 to the Declaration of Abbas Kazerounian

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filed in support of the motion for preliminary approval. (Id. at pp. 1-2.)

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Having reviewed and considered the moving papers and the lodged document,

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the Court finds good cause exists to seal the lodged exhibit. Accordingly, the Court
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GRANTS Plaintiff’s ex parte motion to file under seal Exhibit C to the Declaration

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of Bill Elvin, which is part of Exhibit 2 to the Declaration of Abbas Kazerounian

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filed in support of the motion for preliminary approval.

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III.

ORDER

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For the reasons outlined above, the Court GRANTS Plaintiff’s motion for

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leave to amend and ORDERS Plaintiff to file the FAC attached as Exhibit A to its

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motion no later than April 4, 2016.

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The Court further GRANTS Plaintiff’s ex parte motion to seal Exhibit C to

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the Declaration of Bill Elvin, which is part of Exhibit 2 to the Declaration of Abbas

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Kazerounian filed in support of the motion for preliminary approval. (See ECF No.

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104 (Sealed Lodged Proposed Document).)

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IT IS SO ORDERED.

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DATED: March 31, 2016

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