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. 2002).
AND FACTUAL BACKGROUND
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
5. The complaint fails to connect plaintiffs 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 ...