United States District Court, D. Oregon, Portland Division
ERIK MATTSON, individually and on behalf of all others similarly situated, Plaintiff,
QUICKEN LOANS, INC.; NEW PENN FINANCIAL, LLC.; VISION QUEST LENDING; and UNITED MORTGAGE, CORP., Defendant.
OPINION AND ORDER
Yim You United States Magistrate Judge
Erik Mattson (“Mattson”) brings this putative
class action against Quicken Loans, Inc. (“Quicken
Loans”), New Penn Financial, LLC (“New
Penn”), Vision Quest Lending (“Vision
Quest”), and United Mortgage, Corp.
(“United”) for violations of the Telephone
Consumer Protection Act of 1991 (“TCPA”). Mattson
seeks leave to amend his initial complaint pursuant to FRCP
15(a)(2), and has included a proposed First Amended Complaint
(“FAC”) with his motion as required. The FAC
alleges that, within a twelve-month period, each defendant
made two or more calls and/or text messages to Mattson, a
registrant of the national do not call registry, in violation
of 47 U.S.C. 227(c) and 47 C.F.R. § 64.1200(c). Because
the elements for joinder of the four defendants under FRCP
20(a)(2) are not satisfied, severance is required pursuant to
FRCP 21. With this modification, the motion for leave to
amend (ECF #60) is GRANTED, and the motions to dismiss (ECF
##17, 43, 44, 47) are DENIED as moot.
15(a)(2) provides that “[t]he court should freely give
leave when justice so requires.” However, leave to
amend “is not to be granted automatically.”
Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th
Cir. 1990) (emphasis added). The court “may exercise
its discretion to deny leave to amend due to ‘undue
delay, bad faith or dilatory motive on part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party . .
., [and] futility of amendment.'” Carvalho v.
Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th
Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178,
182 (1962)) (alterations in original). In its exercise of
discretion, the court may also properly consider whether
allowing additional claims at a late date will require
further discovery, resulting in prejudice to the opposing
party and a delay of the proceedings. Zivkovic v. S.
California Edison Co., 302 F.3d 1080, 1087 (9th Cir.
AND FACTUAL BACKGROUND
receipt of calls and text messages in violation of the TCPA,
Mattson filed a class action complaint against Quicken Loans,
New Penn, Vision Quest, and United. ECF #1. Defendants moved
to dismiss for lack of subject matter jurisdiction, lack of
personal jurisdiction, and failure to state a claim under
FRCP 12(b)(1), (2), and (6). ECF ##17, 43, 44, 47. Oral
argument was held on March 13, 2018. By order dated March 14,
2018, this court held the motion to dismiss in abeyance to
allow Mattson to seek leave to amend the complaint. Mattson
was directed to address the following deficiencies:
1. The allegation of “multiple calls from
defendants” fails the FRCP 8 test because it
impermissibly lumps all of the defendants together without
any supporting factual allegations about date, time, content,
source, number, or other information about any single call.
2. The allegations fail to state a claim under 47 U.S.C.
§ 227, which requires more than one call in a 12-month
period. There is no allegation that any defendant made more
than one call.
3. The personal jurisdiction allegations are insufficient.
Factual allegations regarding each defendant's contact
with Oregon are required.
4. The allegations about agency are confusing and factually
unsupported. If, as was stated in the oral argument,
plaintiff is not alleging collusion, these allegations should
5. The complaint fails to connect plaintiff's alleged
injury with any conduct of any specific defendant.
clarification of the allegations of coordination or collusion
between the defendants, this court deferred the decision on
whether this case is more appropriately filed as four
March 26, 2018, Mattson filed his motion for leave to amend,
attaching a copy of the proposed FAC, in accordance with the
March 14, 2018 order and LR 15-1. ECF # 60. The FAC alleges
that despite his registration with the national do not call
registry, Mattson began receiving automated calls on his
cellular telephone from various numbers ...