United States District Court, D. Oregon, Portland Division
ERIK MATTSON, individually and on behalf of all others similarly situated, Plaintiff,
QUICKEN LOANS, Inc., Defendant.
OPINION AND ORDER
Yim You United States Magistrate Judge
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.
AND FACTUAL BACKGROUND
November 16, 2017, Mattson filed a complaint against Quicken
Loans and three of its competitors in case
3:17-cv-01840 (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).
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.
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.
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.
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.
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.
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).
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)).
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. ...