Linlor v. Five9, Inc. et al

Filing 47

ORDER (1) denying 44 Plaintiff's Ex Parte Motion to Add Scott Stagg as a Defendant; and (2) Denying as moot 46 Plaintiff's Ex Parte Motion for a Third Party Subpoena to Identify Remaining Defendant(s). Signed by Judge Michael M. Anello on 3/22/2018. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES LINLOR,

Case No.: 17cv218-MMA (BLM)
Plaintiff,

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ORDER:

v.
FUTERO, INC.; and DOES 1-9,

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(1) DENYING PLAINTIFF'S EX
PARTE MOTION TO ADD SCOTT
STAGG AS A DEFENDANT; AND

Defendants.

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[Doc. No. 44]

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(2) DENYING AS MOOT
PLAINTIFF’S EX PARTE MOTION
FOR A THIRD PARTY SUBPOENA
TO IDENTIFY REMAINING
DEFENDANT(S)

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[Doc. No. 46]

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Presently before the Court are two ex parte motions filed by pro se Plaintiff James

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Linlor. Doc. Nos. 44, 46. Plaintiff seeks leave to amend his complaint to add two

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additional defendants. Doc. No. 44 at 1. In one motion, Plaintiff seeks leave to add Scott

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Stagg as a defendant in this action. See Doc. No. 44. In the second motion, Plaintiff

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requests permission to issue a third party subpoena pursuant to Federal Rule of Civil

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Procedure 45 “to seek the identity/ies and contact information claimed to be known to

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Five9, Inc., for the sender of telemarketing messages and phone calls to Plaintiff’s

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cellphone.” Doc. No. 46 at 1. It appears that Plaintiff would use that information to seek

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leave to add additional defendants to this action. See Doc. No. 44 at 1.

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Federal Rule of Civil Procedure 15(a) provides that a party may amend their
complaint once “as a matter of course” before a responsive pleading is served, after the
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“party may amend its pleading only with the opposing party’s written consent or the

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court’s leave.” Fed. R. Civ. P. 15(a). Thus, “after a brief period in which a party may

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amend as of right,” leave to amend lies “within the sound discretion of the trial court.”

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United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice

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so requires.’” AmerisourceBergen Corp. v. Dialysist West, Inc., 445 F.3d 1132, 1136

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(9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to

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amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad

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faith; (3) produces an undue delay in the litigation; or (4) is futile.” Id. However,

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“[w]here the party seeking amendment knows or should know of the facts upon which the

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proposed amendment is based but fails to include them in the original complaint, the

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motion to amend may be denied.” E.E.O.C. v. Boeing, Co., 843 F.2d 1213, 1222 (9th

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Cir. 1988) (quoting Jordan v. Cnty. of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982),

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vacated on other grounds, 459 U.S. 810 (1982)). Further, the “court’s discretion to deny

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leave to amend is particularly broad where the court has already given the plaintiff an

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opportunity to amend his complaint.” Fidelity Fin. Corp. v. Fed. Home Loan Bank of

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San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986).

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Plaintiff seeks leave to add Scott Stagg and another as defendants in the instant

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action. Doc. No. 44 at 1-2. Plaintiff indicates that Five9, Inc. (“Five9”), a third party

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who was previously dismissed from this action with prejudice, claims to have

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information identifying unnamed defendants and that Mr. Stagg is the owner of

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Defendant Futero, Inc. (“Futero”). Id.; Doc. No. 37. With respect to Mr. Stagg, Plaintiff

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asserts that he is a proper defendant because “a recent change in telemarketing sending

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numbers [are] now coming from an area code in the same area where Scott Stagg lives,”

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leading Plaintiff to believe that Futero “may be operated under the owner’s personal

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name and bank accounts, which therefore require timely adding of the owner of Futero”

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to the action. Id. at 2. In a separate motion, Plaintiff moves the Court to subpoena Five9

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to obtain “names, contact information, copies of contracts, and bank account information
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related to parties known to Five9, Inc. as referenced in communications as likely or

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telemarketers to Plaintiff’s cellphones.” Doc. No. 46 at 6. Plaintiff indicates that this

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information will identify unnamed defendants in this action, which he also seeks leave to

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add as parties to this action. Doc. No. 44 at 1.

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Here, the Court finds that leave to amend is not warranted because Plaintiff knew

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or should have known the facts upon which the proposed amendment is based, but failed

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to include them in the original complaint, or any prior complaints. See E.E.O.C., 843

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F.2d at 1222. Plaintiff indicates that his “original and first amended Complaints” show

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that Five9 knew “the parties telemarketing to Plaintiff’s cellphones.” Doc. No. 46 at 5.

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Further, Plaintiff knew, or at least should have known, who the owner of Futero is and

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who the agent for service of process is prior to filing his Second Amended Complaint.

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See Doc. No. 44 at 4-5.

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In addition, Plaintiff raises only conclusory arguments in support of his two

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motions. For example, Plaintiff argues that Mr. Stagg is directly liable for Futero’s

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alleged TCPA violations because he is the owner of Futero and is the agent for service of

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process, because he was served at a residential address, and because Plaintiff has received

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text messages from “an area code in the same area as where Scott Stagg lives.” Doc. No.

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44 at 1-2. Similarly, Plaintiff’s arguments that persons or entities with a business

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relationship with Five9 are “likely . . . telemarketers to Plaintiff’s cellphones” are

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conclusory. Doc. No. 46 at 6. These conclusory arguments indicate that amendment

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would be futile. See AmerisourceBergen Corp, 445 F.3d at 1136.

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Finally, the Court notes that Plaintiff has been given ample opportunities to amend

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his complaint. See Docket. Plaintiff filed his original Complaint on January 4, 2017 in

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the San Diego Superior Court. Doc. No. 1-2 at 4. On January 13, 2017, Plaintiff filed a

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First Amended Complaint. Doc. No. 1-2 at 15. Five9 removed this action to this Court

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on February 3, 2017, and subsequently filed a motion to dismiss pursuant to Federal Rule

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of Civil Procedure 12(b)(6). Doc. Nos. 1, 10. Plaintiff opposed the motion, and also

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moved the Court for leave to amend to add Futero as a defendant in this action. Doc.
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Nos. 12, 14. On July 12, 2017, the Court granted both Five9’s motion to dismiss and

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Plaintiff’s motion for leave to amend the complaint to add Futero as a defendant. Doc.

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No. 26. Accordingly, Plaintiff filed a Second Amended Complaint. Doc. No. 27. Five9

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moved to dismiss Plaintiff’s Second Amended Complaint, which the Court granted and

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dismissed Five9 from this action with prejudice. Doc. Nos. 29, 37.

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Prior to dismissing Five9 from the action, the Court set a show cause hearing for

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dismissal for failure to serve Futero pursuant to Federal Rule of Civil Procedure 4 and

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Civil Local Rule 4.1. Doc. No. 36. In response, Plaintiff filed a motion for leave to

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amend the Second Amended Complaint to include factual allegations that his cellphone

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numbers are on the “DO NOT CALL list.”. Doc. No. 39 at 1. The Court granted

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Plaintiff leave to amend and permitted him to file a Third Amended Complaint. Doc. No.

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40. As such, Plaintiff has had ample opportunities to amend his complaint. See Fidelity

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Fin. Corp., 792 F.2d at 1438 (noting that “the court’s discretion to deny leave to amend is

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particularly broad where the court has already given plaintiff an opportunity to amend his

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complaint”). Having had many opportunities in this forum to amend [his] complaint, and

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having been permitted to do so in state court, the Court now finds that [Plaintiff] may not

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have another.

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For the reasons stated herein, the Court DENIES Plaintiff’s ex parte motion for

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leave to amend to add parties to this action. Doc. No. 44. In light of the Court’s denial of

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Plaintiff’s motion for leave to add defendants to the Third Amended Complaint, the Court

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DENIES AS MOOT Plaintiff’s ex parte motion to issue a third party subpoena. Doc.

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No. 46.

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IT IS SO ORDERED.
Dated: March 22, 2018

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