Strange v. Carnival Corp

Filing 29

MEMORANDUM ORDER re 17 Motion to Dismiss for Failure to State a Claim; Motion to Dismiss; and 21 Motion to Amend/Correct. Plaintiff's Motion to Amend Complaint (Doc. 21) is granted. Carnival filed its Amended Motion to Dismiss (Doc. 17) p rior to the filing of Plaintiff's motion for leave to amend. The amended complaint substantially changed the claims at issue. Accordingly, Carnival's Amended Motion to Dismiss (Doc. 17) is denied without prejudice to any of the arguments or defenses raised therein. Carnival will be allowed 21 days from the entry of this order to file a new motion to dismiss, answer, motion for summary judgment, or other response directed at the most recent amended complaint. This is Plaintiff's second amendment to his complaint. No further amendments will be allowed absent a showing of good cause. Signed by Magistrate Judge Mark L Hornsby on 5/2/2018. (crt,ThomasSld, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

CLINTON STRANGE

CIVIL ACTION NO. 18-cv-0295

VERSUS

CHIEF JUDGE HICKS

CARNIVAL CORP.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Plaintiff filed this civil action against Carnival Corp. for alleged violations of the
Telephone Consumer Protection Act based on calls to Plaintiff’s cell phone. Carnival filed
a motion to dismiss that raised defenses of improper venue and failure to state a claim on
which relief may be granted.
Plaintiff responded with a Motion to Amend Complaint (Doc. 21) that is now before
the court. He stated in his motion that he intended to eliminate one theory of recovery
under the Act and instead assert a claim based on an alleged violation of the Do Not Call
provisions of the Act. Plaintiff stated that he also wished to address the issue of venue in
his amended complaint.
The court “should freely give leave [to amend a complaint] when justice so
requires.” F.R.C.P. 15(a)(2). Rule 15 has a heavy bias in favor of granting leave. “[U]nless
there is a substantial reason, such as undue delay, bad faith, dilatory motive, or undue
prejudice to the opposing party, the discretion of the district court is not broad enough to
permit denial.” Martin’s Herend Imports v. Diamond & Gem Trading, 195 F.3d 765 (5th
Cir. 1999). But denial of leave to amend may be warranted if the proposed amendment is

futile, such as when the proposed amendment fails to state a claim on which relief could
be granted. Stripling v. Jordan Production Co., 234 F.3d 863, 873 (5th Cir. 2000).
Carnival filed a Memorandum in Opposition (Doc. 28) that opposes leave to amend
on the grounds the proposed new claim is futile. Carnival argues that the amendment
alleges only two challenged calls, one of those calls was made within a 31-day grace period
that followed Plaintiff’s registration of his phone on the Do Not Call registry, and the other
call is not alone sufficient to allege a cause of action under the Act because it requires two
or more offending calls.
Carnival’s arguments hinge on the assumption that Plaintiff registered his phone on
January 24, 2018. Plaintiff’s proposed amendment states, however, that Plaintiff “ensured
on 1-24-2018 that his cellphone was registered ….” Plaintiff cites Exhibit D (Doc. 26),
which is a print of a page showing registration was complete with respect to his number.
The exhibit bears the date January 24, 2018 at the top, but it is not clear whether that was
the date of actual registration, the date Plaintiff checked for confirmation of registration,
or whether it is simply the date the page was printed. Thus, a factual underpinning of the
futility argument is not without doubt.
This case is in the early stages, so there is no procedural basis to deny leave to
amend. The futility argument is not persuasive, given the potential ambiguities in the
current record regarding the date of registration. It is also the local preference that
substantive challenges to amendments be brought by a motion to dismiss, which allows a
full opportunity for briefing of potentially case dispositive issues. Accordingly, Plaintiff’s
Motion to Amend Complaint (Doc. 21) is granted. The Clerk of Court is directed to (1)
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file the proposed amended complaint, (2) file with it the Exs. A-C that accompanied the
original complaint (Doc. 1) and are referred to in the amended complaint, and (3) file with
it Ex. D now found at Doc. 26.
Carnival filed its Amended Motion to Dismiss (Doc. 17) prior to the filing of
Plaintiff’s motion for leave to amend. The amended complaint substantially changed the
claims at issue. Accordingly, Carnival’s Amended Motion to Dismiss (Doc. 17) is denied
without prejudice to any of the arguments or defenses raised therein. Carnival will be
allowed 21 days from the entry of this order to file a new motion to dismiss, answer, motion
for summary judgment, or other response directed at the most recent amended complaint.
This is Plaintiff’s second amendment to his complaint. No further amendments will
be allowed absent a showing of good cause.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 2nd day of May, 2018.

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