West et al v. C.J. Prestman Company et al
MEMORANDUM DECISION AND ORDER granting in part and denying in part 17 Motion to Dismiss; granting in part and denying in part 19 Motion to Amend Complaint: Plaintiffs may file a second amended complaint within 28 days consistent with this order. Failure to timely file such a complaint will result in dismissal of this action. Signed by Judge David Nuffer on 10/13/17 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ROBERT WEST, SAMARA WEST, LYDIA
GREEN, TODD PALMER, TRACI
PALMER, GLOYD GREEN, JAKE WEST,
SAMUEL DALSASSO, CRAIG WEST,
DHYANI SHAW, ASHELY WEST, JOHN
ROBERT LESTER HAVERSTOCK,
LILIANA ELIZABETH HAVERSTOCK,
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART
 DEFENDANTS’ MOTION TO
 PLAINTIFFS’ MOTION TO
Case No. 2:16-CV-00075-DN
C.J. PRESTMAN COMPANY JASON
OLSEN, CORY OLSEN, SHAUN OLSEN,
District Judge David Nuffer
This case concerns the surveillance practices of a car dealership in Utah. The plaintiffs
are a group of former employees and their family members and customers of the dealership who
allege they were subjected to undisclosed, invasive audio surveillance at the dealership.
Plaintiffs’ original complaint filed in Utah State court on November 27, 2015 1 was removed to
this court on January 29, 2016. 2
The Amended Complaint 3 filed by plaintiffs Robert West, Samara West, Lydia Green,
Todd Palmer, Traci Palmer, Gloyd Green, Jake West, Samuel Dalsasso, Craig West, Dhyani
See Original Complaint attached as Exhibit A to Notice of Removal, docket no. 2-1, filed Jan. 29, 2016.
Additionally, Plaintiff Robert West has another lawsuit pending against Defendants in state court, which Defendants
say relates to West’s termination. Opposition to Plaintiff’s Motion to File a Second Amended Complaint
(“Opposition to Motion to Amend”) at 2, docket no. 22, filed May 23, 2016. See West v. Prestman Auto, No.
130907860 (3d Dist. Ct. Salt Lake County, Utah filed Nov. 15, 2013).
Amended Complaint for Injunctive Relief and, [sic] Damages (“Amended Complaint”), docket no. 16, filed Mar.
Shaw, Ashely West, John Robert Lester Haverstock, Liliana Elizabeth Haverstock, and
Autozinc.com (collectively, “Plaintiffs”) alleges:
violations of the Federal Wiretap Act and the Utah Interception of
intrusion upon seclusion;
violation of the Utah Payment of Wages Act, conversion, and wrongful
termination in violation of public policy; and
violation of the Utah Consumer Sales Practices Act.
Defendants C.J. Prestman Company, Jason Olsen, Cory Olsen, Shaun Olsen, (collectively
“Prestman Auto”), and Dave White (together with Prestman Auto, “Defendants”) filed a Motion
to Dismiss the Amended Complaint 4 (the “Motion to Dismiss”). Plaintiffs opposed 5 the Motion
to Dismiss, arguing that they had alleged sufficient facts under Federal Rules of Civil Procedure
8 and 12. 6 Because Plaintiffs have alleged sufficient facts to state some but not all of their
claims, and because some claims are without a legal basis, the Motion to Dismiss is GRANTED
as to Counts III and IV, and DENIED as to Counts I and II.
Provoked by the Motion to Dismiss, Plaintiffs filed a Motion for Leave to File a Second
Amended Complaint (“Motion to Amend”). 7 Defendants opposed 8 the Motion to Amend,
arguing prejudice from “Plaintiffs’ undue delay, bad faith, dilatory motive, and the overall
futility of the amendments.” 9 Defendants will not be prejudiced by a second amended complaint.
However, the second amended complaint proposed by Plaintiffs does not cure all defects in
Docket no. 17, filed Apr. 14, 2016.
Response Memorandum in Opposition to Motion to Dismiss (“Opposition to Motion to Dismiss”), docket no. 18,
filed May 4, 2016.
See Fed. R. Civ. P. 8(a) and 12(b)(6).
Docket no. 19, filed May 4, 2016.
Opposition to Motion to Amend.
Id. at 4.
Plaintiffs’ claims and is in improper form. Plaintiffs’ Motion to Amend is DENIED IN PART
and GRANTED IN PART. Plaintiffs are permitted to file a second amended complaint consistent
with this Order.
Table of Contents
MOTION TO DISMISS ................................................................................................................. 3
Background ......................................................................................................................... 4
Discussion ........................................................................................................................... 6
Autozinc.com has failed to state a claim. ............................................................... 6
Plaintiffs sufficiently pleaded facts for State and Federal wiretap claims. ............. 7
Plaintiffs sufficiently pleaded a claim for intrusion upon seclusion ....................... 9
Plaintiffs do not state claims for pay violations, conversion, and wrongful
discharge. .................................................................................................. 10
Plaintiffs have not sufficiently pleaded a claim under the Utah Consumer Sales
Practices Act (“UCSPA”). ........................................................................ 12
MOTION TO AMEND................................................................................................................. 14
ORDER ......................................................................................................................................... 15
MOTION TO DISMISS
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to provide “a
short and plain statement of the claim showing that the pleader is entitled to relief.” 10 Rule
12(b)(6) allows a court to dismiss a case for “failure to state a claim upon which relief can be
granted” at any point. 11 To survive a motion to dismiss, a complaint must state “sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” 12 The facts as
alleged will be accepted as true for the purposes of evaluating the sufficiency of the complaint.
Legal conclusions in the complaint need not be accepted as true. 13 Whether a complaint states a
Fed. R. Civ. P. 8(a).
Fed. R. Civ. P. 12(b)(6).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
plausible claim for relief is a “context-specific” question that requires a court to “draw on its
judicial experience and common sense” 14 and determine if the pleading’s content “allows the
court to draw the reasonable inference that the defendant is liable.” 15 The standard does not
require “detailed factual allegations,” though a “formulaic recitation of the elements of a cause of
action will not do.” 16 Under “the compromise enacted by Rule 8’s notice pleading . . . [t]echnical
fact pleading is not required, but the complaint must still provide enough factual allegations for a
court to infer potential victory.” 17
West Parties: Plaintiff Robert West was an at-will employee of Prestman Auto from
April 2012 to May 2012. 18 In June 2012, West entered a written employment contract with
Prestman Auto effective through August 2013. 19 Plaintiffs Samara West, Craig West, Jake West,
Samuel Dalsasso, 20 and Ashley West (the “West Family”) are family members of Robert West. 21
Palmer Parties: Plaintiff Todd Palmer was a salesman at Prestman Auto from at least
April 2013 to June 2014. 22 Plaintiff Traci Palmer is Todd Palmer’s wife. 23
Id. at 679.
Id. at 678.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
Amended Complaint ¶ 10.
Id. ¶ 9.
Plaintiff Samuel Dalsasso is only referenced in the Amended Complaint’s caption and not in the body of the
complaint. However, a Samuel West is referenced in the body of the Amended Complaint. Plaintiffs must ensure
that the parties’ names are consistent in the caption and text of their second amended complaint, including the proper
spelling of “Ashely” or “Ashley” West.
Amended Complaint ¶¶ 7, 22.
Id. ¶¶ 1, 33.
Id. ¶ 7.
Other Parties: Plaintiffs Lydia Green and Gloyd Green were Prestman Auto’s
customers. 24 The remaining Plaintiffs, Dhyani Shaw, Bob Haverstock, and Liliana Haverstock,
are either family of Robert West or Todd Palmer or customers of Prestman Auto. 25
Plaintiffs allege that Prestman Auto used a complex audio surveillance system to
systematically and intentionally intercept and record Plaintiffs’ 26 live oral conversations for 24
hours a day over the time period from April 2013 through September 2015 or later. 27 Plaintiffs
assert Prestman Auto did not provide formal or adequate notice of the audio surveillance and that
Plaintiffs did not have knowledge of, or consent to the audio surveillance during this period. 28
Plaintiffs allege Defendant Dave White joined in Prestman Auto’s surveillance no later than
August 2013 29 and that Defendants continued to record and monitor audio at Prestman Auto
until September 2015. 30
Timeframe of Interceptions of West Conversations: Robert West and Todd Palmer
allege that thousands of their personal conversations were recorded by Prestman Auto. 31 The
West Family had private conversations with Robert West which were surveilled between April
and August of 2013, 32 when Robert West was fired. 33 Plaintiffs Dhyani Shaw, Bob Haverstock
and Liliana Haverstock did not have any communications intercepted after August 2013.
Id. ¶¶ 2–3.
Id. ¶ 2.
The Amended Complaint does not allege any causes of action on behalf of Plaintiff Autozinc.com, thus the term
“Plaintiffs” will hereinafter refer to all Plaintiffs except Autozinc.com.
Amended Complaint ¶¶ 1, 19–26.
Id. ¶¶ 18, 36.
Id. ¶ 3.
Id. ¶ 37.
Id. ¶ 2.
Id. ¶¶ 1, 7.
Id. ¶¶ 9, 56.
Timeframe of Interceptions of Palmer Conversations: The audio surveillance
continued as to Todd Palmer and his wife, until Todd Palmer was fired from Prestman Auto in
June 2014. 34 Todd Palmer alleges he was fired because he witnessed Defendants listening in on
private conversations and warned them that it was illegal. 35
In addition to surveilling Todd Palmer’s conversations, Defendants allegedly withheld
$700 from Todd Palmer’s paycheck to pay for a customer’s damaged bumper. 36
Green Allegations: In the winter of 2013, Green went to Prestman Auto to purchase a
car and had her private phone conversations with Robert West and her father, plaintiff Gloyd
Green, intercepted by Defendants. 37 These private conversations revealed Green’s bargaining
and negotiation strategies, which allowed Defendants to gain an unfair bargaining advantage
over Green. 38
Damage Allegations: As a result of this secret audio surveillance, Plaintiffs contend they
have been injured due to the “stress and anxiety of knowing their personal privacy was violated
in such a continuous and wanton way.” 39
Autozinc.com has failed to state a claim.
Plaintiff Autozinc.com is a dealership owned by Robert West. 40 The Amended Complaint
asserts conclusively that Autozinc.com has been disadvantaged by Defendants’ audio
Id. ¶¶ 3, 33.
Id. ¶¶ 39, 46.
Id. ¶ 96.
Id. ¶¶ 25, 104.
Id. ¶¶ 105, 112.
Id. ¶ 7.
Opposition to Motion to Dismiss at 4.
surveillance. 41 No other allegations in the Amended Complaint pertain to Autozinc.com.
Autozinc.com has not alleged any facts on which to base a claim against Defendants. Because
Autozinc.com has not satisfied Rule 8’s notice pleading requirement, 42 the Motion to Dismiss is
GRANTED as to all claims asserted on behalf of plaintiff Autozinc.com, subject to more specific
pleading in the second amended complaint.
Plaintiffs sufficiently pleaded facts for State and Federal wiretap claims.
The Omnibus Crime Control and Safe Streets Act of 1968 (“Federal Wiretap Act”) 43 and
the Utah Interception of Communications Act 44 (collectively “Wiretap Acts”) prohibit any
person, including corporations 45 from intercepting, using, or disclosing the contents of any oral
communication 46 uttered by a person. The Wiretap Acts allow for a civil cause of action and
have a two-year statutes of limitation barring suits brought more than two years “after the date
upon which the claimant first has a reasonable opportunity to discover the violation.” 47
Oral communication is defined by the Wiretap Acts as “any oral communication uttered
by a person exhibiting an expectation that such communication is not subject to interception
under circumstances justifying such expectation[.]” 48 As recognized by the Tenth Circuit, the
legislative history of the Federal Wiretap Act reveals that “Congress intended this definition to
parallel the ‘reasonable expectation of privacy test’ articulated by the Supreme Court in Katz v.
Amended Complaint ¶ 5.
Fed. R. Civ. P. 8(a)(2).
18 U.S.C. § 2510–2522.
Utah Code Ann. §§ 77-23a-1 et seq.
18 U.S.C. § 2510(6); Utah Code Ann. § 77-23a-3(15).
18 U.S.C. § 2511(1); Utah Code Ann. § 77-23a-4(1)(b).
18 U.S.C. § 2520; Utah Code Ann. § 77-23a-11.
18 U.S.C. § 2510(2); Utah Code Ann. § 77-23a-3(13) (internal punctuation omitted).
United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).” 49 Thus, Plaintiffs are
required to allege facts showing that (1) they had an actual, subjective expectation of privacy,
and (2) that their expectation of privacy is one that society is willing to recognize as
As a threshold matter, Defendants argue 51 that Plaintiffs’ claims are barred because they
were brought more than two years after they had a reasonable opportunity to discover the audio
surveillance in April 2013. Defendants argue that they installed a video surveillance system in
April 2013 which Plaintiffs knew about, and thus reasonably should have known about the audio
surveillance system. 52 If Plaintiffs knew about the audio surveillance in April 2013, such
knowledge would have triggered the Wiretap Acts’ two-year statutes of limitations, making
Plaintiffs’ claims untimely because the original complaint was filed on November 27, 2015. 53
This argument requires inferences in the Defendants’ favor, which is inappropriate on the
motion to dismiss. 54 “A statute of limitations defense ‘may be appropriately resolved on a [Rule]
12(b) motion when the dates given in the complaint make clear that the right sued upon has been
extinguished.’” 55 Plaintiffs alleged in the Amended Complaint that they did not know about
Defendants’ audio surveillance capabilities. 56 This allegation, coupled with the allegation that
United States v. Longoria, 177 F.3d 1179, 1181 (10th Cir. 1999).
Id. at 1182.
See Motion to Dismiss at 12.
See Amended Complaint ¶ 16.
See Notice of Removal, docket no. 2.
Iqbal, 556 U.S. at 678.
Sierra Club v. Okla. Gas and Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016) (internal citation omitted).
Amended Complaint ¶ 1.
the Plaintiffs filed their claims within two years of discovering the audio surveillance, 57 is
enough to survive the motion to dismiss.
The Wiretap Acts require Plaintiffs to have had “an actual, subjective expectation of
privacy . . . [that] society would objectively consider reasonable.” 58 For purposes of this Motion
to Dismiss, accepting Plaintiffs’ allegation that they believed they had a legitimate expectation of
privacy in their conversations as true, 59 the first element is satisfied. Whether society might
consider this expectation to be reasonable is a question of fact that is better answered at the
summary judgment stage or later.
Likewise, Defendants’ argument that Plaintiffs impliedly consented to the audio
surveillance is a fact question which cannot now be resolved. Plaintiffs have alleged consistently,
if not plainly, that they did not know about the audio surveillance. 60 Arguments or evidence to
the contrary are outside of the pleadings and may not be resolved on a Rule 12(b)(6) motion.
Therefore, because Plaintiffs have alleged a plausible claim for violations of the Wiretap
Acts, Defendants’ Motion to Dismiss is DENIED as to Count One.
Plaintiffs sufficiently pleaded a claim for intrusion upon seclusion
A claim for intrusion upon seclusion in Utah requires Plaintiffs to sufficiently plead two
elements: (1) they have suffered “an intentional substantial intrusion” on their privacy, and (2)
the intrusion would be “highly offensive” to a reasonable person. 61
Id. ¶ 81.
Longoria, 177 F.3d at 1181–82.
Amended Complaint ¶ 66.
Id. ¶ 18.
Stien v. Marriott Ownership Resorts, Inc., 944 P.2d 374, 379 (Utah Ct. App. 1997).
Utah courts have determined that electronic eavesdropping may support a claim of
intrusion upon seclusion. 62 Plaintiffs allege an intrusion into their privacy through live audio
surveillance. 63 The fact that the Wiretap Acts criminalize the interception, use and disclosure of
oral communications without consent 64 lends credibility to the argument that wiretapping is
offensive to the reasonable person. Additionally, taking the allegations in the Amended
Complaint as true, Defendants intercepted Plaintiffs’ conversations for various improper
purposes and without Plaintiffs’ consent. 65
Plaintiffs’ have sufficiently pleaded wiretap allegations at this stage to sustain a claim of
intrusion upon seclusion. Defendants have not shown failure to state a claim under Rule 12(b)(6).
Accordingly, Defendants’ Motion to Dismiss is DENIED as to Count Two.
Plaintiffs do not state claims for pay violations, conversion, and wrongful discharge.
Todd Palmer alleges that Defendants withheld $700 from his paycheck in violation of the
Utah Payment of Wages Act (“UPWA”) and an act of conversion. Palmer also alleges he was
wrongfully discharged in violation of public policy.
UPWA: The UPWA prohibits an employer from withholding or diverting any of an
employee’s wages. 66 However, Utah law does not provide a private right of action under the
UPWA. 67 Though Palmer claims that withholding $700 was impermissible under the UPWA, he
Amended Complaint ¶ 1.
18 U.S.C. § 2511(4)(a); Utah Code Ann. § 77-23a-4(10)(a).
See, e.g., Amended Complaint ¶¶ 5, 13–15, 27, & 42.
Utah Code Ann. § 34-28-3.
Burgess v. Glob. Clean Energy Holdings, Inc., No. 2:11-CV-682 TS, 2012 WL 1410266, at *3 (D. Utah Apr. 23,
2012) (citing Sell v. Hertz Corp., 746 F. Supp.2d 1206, 1212 (D. Utah 2010)).
does not provide any allegations or arguments that would support a private action. Therefore,
Todd Palmer’s UPWA claim is DISMISSED.
Conversion: “A conversion is an act of willful interference with a chattel, done without
lawful justification by which the person entitled thereto is deprived of its use and possession.” 68
Money may only be considered a chattel under certain circumstances, such as when the party
charged wrongfully received it or when funds are misappropriated for a definite application. 69
Utah courts have not expressly addressed whether unpaid wages constitute a chattel for
purposes of a conversion claim. However, in In re Wal-Mart Wage & Hour Employee Practices
Litigation, 70 a federal district court determined that Utah would not recognize a conversion claim
where a nationwide retailer allegedly failed to pay its hourly employees for all time worked. The
court concluded that “Utah would not recognize a conversion claim in these circumstances
because unpaid wages constitute money not subject to conversion under Utah law unless
Defendants wrongfully received the money.” 71
Similarly, Todd Palmer has not alleged that he gave money to Defendants which
Defendants then converted to their own use, or that Defendants wrongfully received the $700.
The allegations of wrongful withholding in the Amended Complaint do not satisfy the elements
of conversion because Palmer did not entrust the money to Defendants for a specific purpose,
and Defendants are not using the money for their own, unauthorized purposes. The facts may
support a claim for breach of contract, but not conversion. Todd Palmer’s conversion claim is
Allred v. Hinkley, 328 P.2d 726, 728 (Utah 1958).
State v. Twitchell, 832 P.2d 866, 870 (Utah Ct. App. 1992).
490 F. Supp. 2d 1091 (D. Nev. 2007).
Id. at 1104.
Wrongful discharge: In order to assert liability for wrongful discharge in violation of
public policy in Utah, a plaintiff must show “ that his employer terminated him;  that a
clear and substantial public policy existed;  that the employee's conduct brought the policy
into play; and  that the discharge and the conduct bringing the policy into play are causally
connected.” 72 A “clear” public policy is one that is “plainly defined by legislative enactments,
constitutional standards, or judicial decisions [and] . . . is far narrower than what may typically
be characterized as ‘public policy.’” 73
Todd Palmer claims he was terminated because he protested Defendants’ audio
surveillance and he “would not wink at their illegal behavior.” 74 Yet, Plaintiffs do not argue that
any public policy is implicated by Defendants’ actions. The Amended Complaint does not state
which public policy is alleged to have been violated. For these reasons, Todd Palmer’s claim for
wrongful discharge is DISMISSED.
In sum, Defendants’ Motion to Dismiss as to all of Count III is GRANTED. Plaintiffs did
not address the deficiencies in these three claims in their Opposition to the Motion to Dismiss or
in their Motion to Amend, thus failing to overcome Defendants’ argument that amendment
would be futile. The claims in Count III must be excluded from Plaintiffs’ second amended
Plaintiffs have not sufficiently pleaded a claim under the Utah Consumer Sales Practices Act
Plaintiff Lydia Green alleges that Defendants “gained an unfair bargaining advantage”
over her by eavesdropping on her private conversations, to learn her negotiation strategy, in
Ryan v. Dan's Food Stores, Inc, 972 P.2d 395, 404 (Utah 1998).
Id. at 405.
Amended Complaint ¶¶ 90, 92.
violation of the UCSPA. 75 The UCSPA “protect[s] consumers from suppliers who commit . . .
unconscionable sales practices.” 76 Additionally, the “unconscionability of an act or practice is a
question of law for the court.” 77
The Utah Supreme Court has not specifically determined whether the UCSPA governs
claims against car dealerships for eavesdropping on conversations to determine customer
negotiation strategies. However, the Court has ruled that UCSPA claims are barred when the
“complained-of conduct [is] governed by other, more specific law.” 78 In Carlie v. Morgan, the
Utah Supreme Court determined that the Utah Fit Premises Act, a more specific statute, provided
a remedy for the conduct plaintiffs complained about, and held that its “long-standing rule of
statutory construction that ‘[s]pecific statutes control over more general ones, . . . [and the]
plaintiffs may not resort to the UCSPA under the facts alleged.” 79
And after the Utah Supreme Court’s decision in Carlie, courts have barred UCSPA
claims when more specific statutes apply to the wrongful conduct. 80 The wrongful complainedof conduct in this case is that Defendants intentionally recorded Lydia Green’s conversations
without her knowledge. 81 This conduct falls squarely within the Wiretap Acts. 82 Thus, because
Amended Complaint ¶ 105.
Utah Code Ann. § 13-11-2(2).
Id. at § 13-11-5(2).
Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1150 (10th Cir. 2013).
922 P.2d 1, 6 (Utah 1996) (first alteration in original) (citation omitted) (quoting State v. Lowder, 889 P.2d 412,
414 (Utah 1994)).
See, e.g., Berneike, 708 F.3d at 1150 (UCSPA claims barred where conduct was covered by the Mortgage
Lending and Servicing Act); Thomas v. Wells Fargo Bank, N.A., No. 2:13-cv-686-PMW, 2014 WL 657394, at *3
(D. Utah Feb. 20, 2014) (UCSPA claims barred where conduct was governed by the Fair Credit Reporting Act).
Amended Complaint ¶¶ 103–107.
See 18 U.S.C. § 2511(1); Utah Code Ann. § 77-23a-4(1)(b).
the more specific Wiretap Acts control over the more general UCSPA, 83 Plaintiff Green’s claim
for violation of the UCSPA is DISMISSED.
MOTION TO AMEND
After amending once as a matter of course, 84 a party may only amend its complaint “with
the opposing party’s written consent or the court’s leave,” and “[t]he court should freely give
leave when justice so requires.” 85 “In the absence of any apparent or declared reason—such as
undue delay, bad faith or dilatory motive on the part of the movant . . . undue prejudice to the
opposing party . . . futility of amendment, etc.—the leave sought should, as the rules require, be
freely given.” 86 Further, “a district court typically may not look outside the four corners of the
amended complaint [and] the plaintiff cannot be bound by allegations in the superseded
complaint[s].” 87 Indeed, amended pleadings supersede the original pleadings, even when the
original pleadings contained “any confession . . . on which the district court could rely[.]” 88
“Courts typically find prejudice only when the amendment unfairly affects the defendants in
terms of preparing their defense to the amendment.” 89
Defendants argue prejudice 90 due to time spent on an earlier motion to dismiss 91 and the
motion to dismiss resolved in this Order. Yet, Defendants also correctly point out that the
Carlie, 922 P.2d at 6.
See Amended Complaint. The Caption of Plaintiff’s Pleadings incorrectly refer to the “Tenth Circuit, Salt Lake
Fed. R. Civ. P. 15(a)(2).
Foman v. Davis, 371 U.S. 178, 182 (1962).
W. Run Student Hous. Assocs., LLC v. Huntington Nat’l Bank, 712 F.3d 165, 173 (3rd Cir. 2013).
Kelley v. Crosfield Catalysts, 135 F.3d 1202, 1205 (7th Cir. 1998); see also Gray v. Phillips Petroleum Co., 858
F.2d 610, 612 (10th Cir. 1988) (allowing an amended complaint that changed the date alleged to fall within the
Minter v. Prime Equip. Co., 451 F.3d 1196, 1208 (10th Cir. 2006) (quotation marks omitted).
Opposition to Motion to Amend at 8.
Defendants’ Motion to Dismiss the Amended Complaint, docket no. 12, filed April 4, 2016.
Proposed Second Amended Complaint contains the same four causes of action found in the
previous complaint, 92 which would not raise substantial new issues or claims that would unfairly
prejudice the Defendants’ defense. The Proposed Second Amended Complaint does not include
significant new facts or any new claims that would prejudice the Defendants in preparing their
To the extent that Plaintiffs seek to add new claims in a second amended complaint, the
Motion to Amend is DENIED. Nevertheless, leave is GRANTED for Plaintiffs to file a second
amended complaint substantially similar in content to the Proposed Second Amended Complaint,
but complying with this Order and in proper form. The filed second amended complaint must
have a proper caption;
remove typographical errors;
state facts clearly;
not have separate sections of facts;
not have duplicate statements of claims;
not include any claims dismissed with prejudice by this Order; and
not contain any new claims other than a claim for breach of Palmer’s employment
contract by withholding the $700.
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss 93 is GRANTED IN
PART and DENIED IN PART.
Any claims by Plaintiff Autozinc.com are DISMISSED without prejudice.
Submitted with Motion to Amend, docket no. 7-38.
Docket no. 17.
Plaintiffs’ claims for violation of the Federal and Utah Wiretap Acts are NOT
Plaintiffs’ claims for intrusion upon seclusion are NOT DISMISSED.
Plaintiff Todd Palmer’s claims for violation of the Utah Payment of Wages Act,
conversion, and wrongful termination in violation of public policy are DISMISSED
Plaintiff Green’s claim for violation of the Utah Consumer Sales Practices Act is
DISMISSED with prejudice.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Amend 94 is DENIED IN PART
and GRANTED IN PART. Plaintiffs may file a second amended complaint within 28 days
consistent with this order. Failure to timely file such a complaint will result in dismissal of this
Dated October 13, 2017.
BY THE COURT:
United States District Judge
Docket no. 19.
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?