Sherman v. Yahoo! Inc.
Filing
163
ORDER Denying 128 , 132 Defendant's Motion for Leave to File First Amended Answer. Signed by Judge Gonzalo P. Curiel on 7/15/2015. (srm)
1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
SOUTHERN DISTRICT OF CALIFORNIA
11
12
13
RAFAEL DAVID SHERMAN and
SUSAN PATHMAN, Individually and
on Behalf of All Others Similarly
Situated,
14
15
16
v.
ORDER DENYING DEFENDANT’S
MOTION FOR LEAVE TO FILE
FIRST AMENDED ANSWER
[ECF Nos. 128 & 132]
YAHOO! Inc.,
Defendant.
17
18
Plaintiffs,
CASE NO. 13cv0041-GPC-WVG
Before the Court is Defendant Yahoo! Inc.’s (“Defendant”) Motion for Leave to
19 File First Amended Answer, filed on May 8, 2015. (ECF No. 128.)1 On May 29, 2015,
20 Plaintiff2 Susan Pathman (“Plaintiff”) filed an opposition to the motion for leave to file
21 an amended answer. (ECF No. 143.) On June 5, 2015, Defendant filed a reply. (ECF
22 No. 149.) The Court found the matter suitable for adjudication without oral argument
23 pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 151.) For the following reasons, the
24 Court DENIES Defendant’s Motion for Leave to File First Amended Answer.
25
1
26
27
28
On May 11, 2015, Defendant filed an amended notice (ECF No. 132), which contained the
hearing date provided by this Court.
2
The Court dismissed Plaintiff Rafael David Sherman without prejudice pursuant to Federal
Rule of Civil Procedure 41(a)(2). (ECF No. 119.)
-1-
13cv0041-GPC-WVG
1
2
BACKGROUND
In this case, Plaintiff, individually and on behalf of those similarly situated,
3 claims that Defendant violated the Telephone Consumer Protection Act (“TCPA”), 47
4 U.S.C.§ 227(b)(1)(A), by sending her an allegedly unsolicited text message on her
5 cellular telephone through its messenger service. (ECF No. 64.) Paragraph 18 of the
6 First Amended Complaint states:
7
8
9
On or about May of 2013, YAHOO sent an unsolicited SPAM text
message to Ms. Pathman (on its own accord) that read: “A Yahoo! User
has sent you a message. Reply to that SMS to respond. Reply INFO to this
SMS for help or go to y.ahoo.it/imsms.”
10 (Id. ¶ 18.) This text message will hereinafter be referred to as the “Welcome Message.”
11 On October 21, 2014, Defendant filed its Answer to the operative First Amended
12 Complaint. (ECF No. 68.)
13
On March 27, 2015, Plaintiff moved to certify a class pursuant to Federal Rule
14 of Civil Procedure (“Rule”) 23(b)(3). (ECF No. 121.) Plaintiff’s proposed Class
15 consists of:
16
17
18
19
All persons within the United States who were sent a text message on a
telephone number assigned to cellular telephone provider AT&T and/or
Cingular, by Defendant, that was substantially similar or identical to the
text message described in Paragraph 18 of the First Amended Complaint,
between May 1, 2013 and May 31,2013, and whose cellular telephone
number is associated with a Yahoo account.
20 (Id. at 2.)3 Plaintiff seeks to recover statutory damages pursuant to 47 U.S.C.
21 § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). (ECF No. 64 ¶¶ 41, 45.)
22
23
LEGAL STANDARD
Under Rule 15(a), a party may amend a pleading once as a matter of course
24 within 21 days of service, or if the pleading is one to which a response is required, 21
25 days after service of a responsive pleading or a motion under Rule 12(b)(e) or (f). “In
26 all other cases, a party may amend its pleading only with the opposing party’s written
27
28
3
The page numbers listed reference the specific document, rather than the ECF, page number.
-2-
13cv0041-GPC-WVG
1 consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Here, because more than 21 days
2 have passed since the filing of the responsive pleadings, and Plaintiff did not consent
3 to the amendment, Defendant requires leave from this Court to file the proposed
4 amended answer.
5
Granting or denying leave to amend is in the discretion of the Court, Swanson
6 v. United States Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996), though leave should be
7 “freely give[n] when justice so requires.” Fed. R. Civ. P. 15(a) (2). “In exercising this
8 discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate
9 decision on the merits, rather than on the pleadings or technicalities.” United States v.
10 Webb, 655 F.2d 977, 979 (9th Cir. 1981). Consequently, the policy to grant leave to
11 amend is applied with extreme liberality. Id. However, leave to amend should not be
12 granted if “amendment would cause prejudice to the opposing party, is sought in bad
13 faith, is futile, or creates undue delay.” Madeja v. Olympic Packers, 310 F.3d 628, 636
14 (9th Cir. 2002) (citing Yakima Indian Nation v. Wash. Dep’t of Revenue, 176 F.3d
15 1241, 1246 (9th Cir. 1999)).
16
17
DISCUSSION
Defendant seeks leave to amend its answer to include the affirmative defense that
18 Plaintiff lacks Article III standing to bring her claims against Defendant because her
19 alleged injury is based on the violation of a statutory right, as opposed to an actual
20 injury. (ECF No. 128-1 at 1.) Defendant recognizes that current Ninth Circuit law
21 allows violation of a statutory right to establish Article III standing. (Id. at 3); see
22 Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010) (holding that the injury
23 required by Article III can exist by virtue of statutes creating legal rights, the invasion
24 of which creates standing), cert. dismissed, 132 S. Ct. 2536 (2012); Robins v. Spokeo,
25 Inc., 742 F.3d 409, 413-14 (9th Cir. 2014) (holding that “alleged violations of [ ]
26 statutory rights are sufficient to satisfy the injury-in-fact requirement” needed to
27 establish Article III standing), cert. granted, 135 S. Ct. 1892 (Apr. 27, 2015). However,
28 because the Supreme Court granted certiorari to review the Ninth Circuit’s decision
-3-
13cv0041-GPC-WVG
1 in Spokeo, Defendant now moves to file an amended answer in order to “reserve its
2 right to assert this defense.”4 (ECF No. 128-1 at 1.) Defendant argues that Plaintiff will
3 suffer no prejudice because lack of Article III standing is a pure legal defense. (Id. at
4 4.)
5
Plaintiff responds that Defendant’s motion and proposed amendment should be
6 denied as futile because Edwards and Spokeo are still good law, and “until and unless
7 the Unites States Supreme Court rules otherwise, [Defendant] has no colorable
8 argument.” (ECF No. 143 at 1.)
9
In response, Defendant argues that the amendment would not be futile because
10 the affirmative defense of lack of Article III standing “would apply” in this case if the
11 Supreme Court were to overturn Spokeo. (ECF No. 149 at 3.) As such, Defendant
12 moves for leave to file an amended answer “to put [P]laintiff on notice” that it will
13 assert this defense if such an event were to occur. (Id.)
14
As an initial matter, the court finds no undue delay, bad faith, or dilatory motive.
15 The Court does, however, find that amendment would be futile. The Ninth Circuit has
16 held that the Court “may grant leave to amend in situations where the controlling
17 precedents changed midway through the litigation.” Sonoma Cty. Ass'n of Retired
18 Emps. v. Sonoma Cty., 708 F.3d 1109, 1117-18 (9th Cir. 2013). But Defendant cites
19
20
21
22
23
24
25
26
27
28
4
Defendant previously attempted to reserve rights to assert defenses in its original Answer.
(ECF No. 116.) Defendant stated that it “reserves the right to raise additional defenses as it becomes
aware of them.” (ECF No. 69 ¶ 59.) The Court struck Defendant’s reservation of rights to raise
additional defenses because it was not an affirmative defense. (ECF No. 116 at 10.) The Court did note
that Defendant “may assert additional defenses later if it amends its pleadings in compliance with the
Federal Rules of Civil Procedure.” (Id. at 10-11.) Here, the Court reiterates that it will strike
“reservations of defenses” that do not comply with the procedures set out in Rule 15. See, e.g.,
Camacho v.Jefferson Capital Sys., LLC, No. 14-cv-02728-BLF, 2014 WL 4954817, at *3 (N.D. Cal.
Oct. 2, 2014); Comercializadora Recmaq v. Hollywood Auto Mall, LLC, No. 12-cv-0945 AJB, 2014
WL 3628272, at *17 (S.D. Cal. July 21, 2014); Weintraub v. LawOffice of Patenaude & Felix, A.P.C.,
299 F.R.D. 661, 668-69 (S.D. Cal. 2014); Vogelv. OM ABS, Inc., No. 13-cv-01797 RSWL, 2014 WL
340662, at *4 (C.D. Cal. Jan. 30, 2014); E.E.O.C. v. Timeless Invs., Inc., 734 F. Supp. 2d 1035, 1055
(E.D. Cal. 2010).
-4-
13cv0041-GPC-WVG
1 no law to support its argument that the Court is required to grant leave to amend in
2 anticipation of a change in controlling precedent, and the Court is aware of none.5
3 Defendant’s desire “to put [P]laintiff on notice” that it will assert this defense if such
4 an event were to occur also is not sufficient for the Court to allow a futile amendment.
5 The Court, therefore, finds that amendment is unwarranted at this time. See Klamath
6 Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)
7 (“futile amendments should not be permitted”).
8
Moreover, as Defendant notes, lack of Article III standing is a claim that cannot
9 be waived. See Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996) (holding that Article III
10 “standing . . . is jurisdictional and not subject to waiver”). As a result, Defendant will
11 suffer no prejudice in the future for the current denial of its proposed first amended
12 answer because Defendant may seek to assert this potentially viable affirmative defense
13 later if the validity of Spokeo changes during the course of these proceedings.
14
15
CONCLUSION
Based on the above, the Court DENIES Defendant’s motion for leave to file a
16 first amended answer.
17
IT IS SO ORDERED.
18 DATED: July 15, 2015
19
HON. GONZALO P. CURIEL
United States District Judge
20
21
22
23
5
Defendant claims that “courts grant leave to amend in light of the Supreme Court granting
24 certiorari.” (ECF No. 149 at 4.) However, in the case Defendant cites to support its position, E.E.O.C.
25 v. Kmart Corp., No. 13-cv-2576-GJH, 2014 WL 5320957, *4 (D. Md. Oct. 16, 2014), the court did
26
27
28
not grant leave to amend solely because the Supreme Court granted certiorari to review the
appropriate standard under which to evaluate the E.E.O.C.’s actions during the conciliation process.
The court granted leave to amend because the proposed amendment could succeed under the
controlling Circuit’s standard. Id. at *3. The Supreme Court’s pending review merely “provide[d] more
support for permitting Defendants to amend their Answer.” Id. at *4.
-5-
13cv0041-GPC-WVG
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?