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Mattson v. Quicken Loans, Inc.

United States District Court, D. Oregon, Portland Division

June 7, 2018

ERIK MATTSON, individually and on behalf of all others similarly situated, Plaintiff,
v.
QUICKEN LOANS, INC.; NEW PENN FINANCIAL, LLC; VISION QUEST LENDING; and UNITED MORTGAGE, CORP., Defendant.

          OPINION AND ORDER

          YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff 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.

         STANDARDS

         FRCP 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. 2002).

         PROCEDURAL AND FACTUAL BACKGROUND

         Alleging receipt of calls and text messages in violation of the TCP A, 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 be removed.
5. The complaint fails to connect plaintiffs alleged injury with any conduct of any specific defendant.

         Pending 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 separate lawsuits.

         On 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 ...


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