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Mattson v. Quicken Loans, Inc.

United States District Court, D. Oregon, Portland Division

October 22, 2018

ERIK MATTSON, individually and on behalf of all others similarly situated, Plaintiff,
v.
QUICKEN LOANS, Inc., Defendant.

          OPINION AND ORDER

          Youlee Yim You United States Magistrate Judge

         Plaintiff Erik Mattson (“Mattson”) brings this putative class action against Quicken Loans, Inc. (“Quicken Loans”) for violations of the Telephone Consumer Protection Act of 1991 (“TCPA”). On June 5, 2018, Mattson amended his complaint to add a second TCPA count for violation of 47 C.F.R. § 64.1200(d) without first seeking leave of court. Quicken Loans has filed a Motion to Strike or Dismiss the Second Cause of Action. ECF #13. In response, Mattson has moved to amend the complaint to add the second claim. The parties agree that the matter has been fully briefed. Given the liberality of FRCP 15(a), the motion for leave to amend is GRANTED, and the motion to strike is DENIED as moot.[1]

         PROCEDURAL AND FACTUAL BACKGROUND

         On November 16, 2017, Mattson filed a complaint against Quicken Loans and three of its competitors in case 3:17-cv-01840[2] (the “17-1840 Complaint”). The 17-1840 Complaint alleged a single count violation of the TCPA under 47 U.S.C. § 227(c) and included a lengthy discussion of implementing regulation 47 C.F.R. § 64.1200(d), which requires telemarketers to have internal procedures for tracking do-not-call requests. Mattson specifically alleged that “[d]efendants violated 47 C.F.R. § 64.1200(d) by initiating calls . . . without instituting procedures that comply with the regulatory minimum standards for maintaining a list of persons who request not to receive telemarketing calls from them.” 17-1840 Compl. ¶¶ 83-86, 17-1840 EFC #1. Despite this allegation, Mattson did not plead a claim under 47 C.F.R. § 64.1200(d).

         Quicken Loans and the other named defendants moved to dismiss the 17-1840 Complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim under FRCP 12(b)(1), (2), and (6). 17-1840 ECF ##17, 43, 44, 47. By order dated March 13, 2018, this court held the motion to dismiss in abeyance to allow Mattson to file a motion to amend and, pursuant to LR 15-1, to attach a proposed amended complaint to remedy deficiencies that had been outlined by the court. 17-1840 ECF # 56. The 47 C.F.R. § 64.1200(d) allegations were not addressed in the motion to dismiss or in the court's order.

         In accordance with the court's order, Mattson filed a motion to amend in the 17-1840 case and attached a proposed First Amended Complaint (“FAC”). 17-1840 ECF #60. The FAC asserted a single-count violation of 47 U.S.C. § 227(c) and included the same language alleging that the defendants had violated 47 C.F.R. § 64.1200(d), without purporting to state a claim under that section. FAC ¶¶ 43, 146-49, 17-1840 ECF #60. Mattson's counsel represented to the court that “[w]e are not alleging violations of the internal do-not-call regs, just the single violations of the National Do-Not-Call Registry regulations.” Tr. 9:12-18, 17-1840 ECF #81.

         By order dated June 7, 2018, this court granted the motion to amend and ordered Mattson to sever the allegations and file cases against each of the defendants individually, as four separate actions with unique case numbers. 17-1840 ECF #80. The order expressly found that the FAC did not state a claim under 47 C.F.R. § 64.1200(d) on the basis of Mattson's representations and the court's own observation that the FAC did not plead facts to support such a claim. Id.

         Mattson then filed his complaint in the severed action against Quicken Loans (case no. 18-989), alleging a second count and defining a subclass. Compl.¶¶ 70, 95-100, ECF #1. Mattson alleges that he was contacted by Quicken Loans on September 1, 2017, September 3, 2017, September 4, 2017, September 6, 2017, November 16, 2017 and November 20, 2017. Id. at ¶¶ 37, 45, 46, 48-50, 67. During the September 6, 2017 call he asked not to be called again. Id. at ¶¶ 48, 67. Mattson alleges that these calls were “initiated without instituting procedures that comply with the regulatory minimum standards for maintaining a list of persons who request not to receive telemarketing calls from them, ” in violation of 47 C.F.R § 64.1200(d). Id. at ¶ 96.

         Quicken Loans has filed a motion to strike or dismiss the second count, asserting that it was filed without leave of court in violation of FRCP 15 and fails to state a claim upon which relief can be granted. Mot. Strike, ECF #13. Mattson has asked this court for leave to amend the complaint, both in his response and by oral motion at the hearing. Resp. at 14, ECF #16. The parties have agreed that the matter may be resolved without further briefing.

         DISCUSSION

         The decision to grant or deny leave to amend is within the sound discretion of the trial court. Foman v. Davis, 371 U.S. 178, 182 (1962). Rule 15 advises that “leave shall be freely given when justice so requires.” FRCP 15(a)(2). “[T]his policy is to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). “Courts may decline to grant leave to amend only if there is strong evidence of ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment, etc.'” Sonoma County Ass'n of Retired Employees v. Sonoma County, 708 F.3d 1109, 1117 (9th Cir. 2013) (quoting Foman, 371 U.S. at 182); see e.g., Redon v. Ruiz, 2016 WL 3406126, at *4 (S.D. Cal. June 21, 2016) (finding sufficiently strong showing of the Foman factors to overcome the presumption in favor of granting leave where plaintiff sought to amend for the fourth time to add 14 new claims and two new defendants). “Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (emphasis in original).

         I. Futility

         The test for futility is the same as the standard used for a motion to dismiss under Rule 12(b)(6). Fulton v. Advantage Sales & Marketing, LLC, No. 3:11-cv-01050-MO, 2012 WL 5182805 at *2 (D. Or. Oct. 18, 2012). “A proposed amended complaint is futile if it would be immediately ‘subject to dismissal.'” Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011) (quoting Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998)), aff'd on reh'g en banc on other grounds, 681 F.3d 1041 (9th Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)).

         Section 64.1200(d) prescribes procedures for maintaining internal do-not-call lists for entities that place telemarketing calls. In particular, subsection (d)(3) provides that an entity making calls to a residential phone for telemarketing purposes “must honor a residential subscriber's do-not-call request within a reasonable time from the date such request is made. ...


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