Stark et al v. Stall, No. 3:2019cv00366 - Document 41 (S.D. Cal. 2021)
Court Description: ORDER Granting Defendant Sutart Stall's Motion to Dismiss Without Leave to Amend (Doc. No. 36 ). The Court grants Stall's motion to dismiss, and dismisses Defendant Stall without leave to amend. Ewing is ordered to show cause by 5/31/2021 why US Global should be not dismissed as well. Failure to show cause will result in dismissal of Defendant US Global. Signed by Judge Anthony J. Battaglia on 5/18/2021. (jrm)
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Stark et al v. Stall Doc. 41 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 COLLETTE STARK, ANTON EWING, Plaintiff, Case No.: 19-cv-00366-AJB-AHG ORDER GRANTING DEFENDANT STUART STALL’S MOTION TO DISMISS WITHOUT LEAVE TO AMEND v. STUART STALL, et al., Defendant. 15 (Doc. No. 36) 16 17 Pending before the Court is Defendant Stuart Stall’s (“Stall”) motion to dismiss 18 Plaintiff Anton Ewing’s (“Ewing”) Third Amended Complaint (“TAC”). (Doc. No. 36.) 19 Ewing filed an opposition to the motion, (Doc. No. 38), and Stall replied, (Doc. No. 39). 20 The Court found this motion suitable for determination on the papers and without oral 21 argument. See Civ. L.R. 7.1(d)(1). As explained below, the Court GRANTS Stall’s motion 22 to dismiss WITHOUT LEAVE TO AMEND. 23 I. BACKGROUND 24 The following facts are taken from the TAC and accepted as true for the limited 25 purpose of resolving this motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th 26 Cir. 2013). Ewing brings this action against Stall and Defendant US Global (“US Global”) 27 alleging violations of the Telephone Consumer Protection Act (“TCPA”). Stall is a 28 California real estate broker selling homes in San Diego. (TAC ¶ F.) Stall allegedly hired 1 19-cv-00366-AJB-AHG Dockets.Justia.com 1 and paid US Global to schedule real estate appointments on Stall’s behalf. (Id. ¶ G.) Ewing 2 alleges that both Stall and US Global called Ewing in violation of the TCPA. (Id. ¶ 33.) As 3 a result of the telephone calls, Stall appeared at Ewing’s home in early February 2019. (Id. 4 ¶ VV.) 5 On February 22, 2019, Collette Stark (“Stark”) and Ewing filed their Complaint in 6 this Court alleging violations of the TCPA. (Doc. No. 1.) Stall filed his first motion to 7 dismiss on March 15, 2019, which was rendered moot by Stark and Ewing’s First Amended 8 Complaint (“FAC”). (Doc. No. 6.) Stall moved to dismiss the FAC. (Doc. No. 7.) The 9 Court granted Stall’s motion to dismiss on August 7, 2019. (Doc. No. 14.) Ewing then filed 10 a Second Amended Complaint (“SAC”) on August 27, 2019. (Doc. No. 16.) Stall again 11 moved to dismiss the SAC, which the Court granted on August 20, 2020. (Doc. No. 34.) 12 In its order, the Court granted Ewing one final attempt to amend his allegations against 13 Stall. (Id.) Ewing then filed a TAC, (Doc. No. 35), on September 1, 2020, which Stall 14 moved to dismiss on September 15, 2020, (Doc. No. 36). This order follows. 15 II. LEGAL STANDARD 16 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 17 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss 18 a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient 19 facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 20 88 F.3d 780, 783 (9th Cir. 1996) (citation and internal quotation marks omitted). However, 21 a complaint will survive a motion to dismiss if it contains “enough facts to state a claim to 22 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 23 In making this determination, a court reviews the contents of the complaint, accepting all 24 factual allegations as true and drawing all reasonable inferences in favor of the nonmoving 25 party. See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 26 975 (9th Cir. 2007). 27 Notwithstanding this deference, the reviewing court need not accept legal 28 conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 2 19-cv-00366-AJB-AHG 1 a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged[.]” Assoc. 2 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 3 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume 4 their veracity and then determine whether they plausibly give rise to an entitlement to 5 relief.” Iqbal, 556 U.S. at 679. 6 Pro se pleadings are held to “less stringent standards than formal pleadings drafted 7 by lawyers” because pro se litigants are more prone to making errors in pleading than 8 litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations 9 omitted); see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute 10 on other grounds. Thus, the Supreme Court held that federal courts should liberally 11 construe the “‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 12 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)). However, 13 pro se plaintiffs are expected to follow “the same rules of procedure that govern other 14 litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see Ghazali v. Moran, 46 F.3d 15 52, 54 (9th Cir. 1995); see also Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) 16 (“[W]hile pro se litigants may be entitled to some latitude when dealing with sophisticated 17 legal issues, acknowledging their lack of formal training, there is no cause for extending 18 this margin to straightforward procedural requirements that a layperson can comprehend 19 as easily as a lawyer.”). Thus, failure to meet procedural requirements will receive less 20 latitude. 21 III. DISCUSSION 22 A. Ewing’s TCPA Claims for Direct and Vicarious Liability Against Stall 23 To successfully plead a TCPA claim, a plaintiff must allege a defendant: (1) called 24 a cellular telephone number or any service for which the called party is charged for the 25 call; (2) using an automated telephone dialing system (“ATDS”) an artificial or prerecorded 26 voice; (3) without the recipient’s prior express consent. See Los Angeles Lakers, Inc. v. 27 Fed. Ins. Co., 869 F.3d 795, 804 (9th Cir. 2017) (quoting Meyer v. Portfolio Recovery 28 Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)). As to the first element, to “make” a 3 19-cv-00366-AJB-AHG 1 call under the TCPA, the person must either (1) directly make the call, or (2) have an 2 agency relationship with the person who made the call. See Gomez v. Campbell-Ewald Co., 3 768 F.3d 871, 877–79 (9th Cir. 2014). And for the second element, an ATDS is “equipment 4 which has the capacity to store or produce telephone numbers to be called, using a random 5 or sequential number generator.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 6 (9th Cir. 2009). 7 1. 8 Ewing Does Not Plead Sufficient Facts to Support a Direct Liability Claim Against Stall 9 Ewing fails to clearly and concisely articulate how Stall directly participated in the 10 alleged phone calls that violated the TCPA. This Court cautioned Ewing as to his 11 “confusingly inconsistent allegations about who exactly called Ewing in violation of the 12 TCPA.” (Doc. No. 34 at 5.) Although Ewing plausibly alleges that he received telemarking 13 robocalls, he fails to sufficiently plead that Stall was the individual who made the calls at 14 issue. When discussing Stall’s involvement, Ewing alleges, “[o]n February 7, 2019, a call 15 to 619-719-9640, which is Mr. Ewing’s cellular telephone, caused his cell phone to ring” 16 and a prerecorded voice was on the end of the call. (TAC ¶ 26.) However, Ewing fails to 17 allege a connection between that call and Stall. See Ewing v. Gonow Travel Club, LLC, 18 No. 19-cv-297-BAS-AGS, 2019 U.S. Dist. LEXIS 120969, at *4 (S.D. Cal. July 19, 2019) 19 (holding that although the plaintiff alleged facts raising a plausible inference that he had 20 received “robocalls,” he had not alleged any facts linking that particular defendant with the 21 robocalls). 22 Additionally, Ewing alleges Stall placed “at least 9 telemarketing robocalls to Mr. 23 Ewing.” (TAC ¶ 28.) Then, Ewing inconsistently alleges US Global was on the line, not 24 Stall. (Id.) Further, Ewing alleges Stall only appeared at Ewing’s home “as a direct result 25 of the illegal telemarking call made by US Global” and not by Stall himself. (Id. ¶ A.e., 26 emphasis added.) Previously, Judge Buuns warned Ewing that if he alleges a TCPA 27 violation, then Ewing must “explain who called him, when, and how he was harmed.” See 28 Ewing v. Empire Capital Funding Grp., Inc., No. 17cv2507-LAB (MDD), 2018 U.S. Dist. 4 19-cv-00366-AJB-AHG 1 LEXIS 128358, at *3 (S.D. Cal. July 30, 2018). Lumping defendants together does not give 2 the defendants or the Court enough information to evaluate individual claims against each 3 defendant. Id. Yet, here, Ewing fails to clearly differentiate each defendant’s involvement 4 in the alleged phone calls. Ewing leaves the Court and Stall with insufficient information 5 to evaluate Ewing’s individual claims. Therefore, the TAC does not contain sufficient 6 factual matter, taken as true, to state a plausible claim against Stall for directly violating 7 the TCPA. 8 2. 9 Ewing Does Not Plead Sufficient Facts to Support a Vicarious Liability Claim Against Stall 10 “[A] defendant may be held vicariously liable for TCPA violations where the 11 plaintiff establishes an agency relationship, as defined by federal common law, between 12 the defendant and a third-party caller.” Gomez, 768 F.3d at 879. Three common law agency 13 theories may provide a basis for vicarious liability: actual authority, apparent authority, 14 and ratification. See Jones v. Royal Admin. Servs., Inc., 887 F.3d 443, 448–49 (9th Cir. 15 2018). 16 17 a) Ewing Does Not Plead Sufficient Facts to Support a Theory of Actual Authority 18 In order to establish that US Global had “actual authority” to place calls on behalf 19 of Stall, Ewing must establish both an agency relationship and “actual authority to place 20 the unlawful calls.” Id. at 449. “Agency is the fiduciary relationship that arises when one 21 person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall 22 act on the principal’s behalf and subject to the principal’s control, and the agent manifests 23 assent or otherwise consents so to act.” Mavrix Photographs, LLC v. Livejournal, Inc., 873 24 F.3d 1045, 1054 (9th Cir. 2017). 25 Here, Ewing alleges Stall hired US Global as his agent. In the TAC, Ewing states in 26 a conclusory manner, “Stall and US Global have a contractual relationship that amounts to 27 and qualifies as an agency relationship[.]” (TAC ¶ A.f.) Ewing argues that “[b]oth the 9th 28 Circuit and the US Supreme Court in the Gomez case have held that Stall is vicariously 5 19-cv-00366-AJB-AHG 1 liable for the acts of US Global in TCPA matters.” 1 However, the Ninth Circuit in Gomez 2 clarified a basis for vicarious liability between a defendant and a third-party caller where 3 the plaintiff establishes an agency relationship between the defendant and a third-party 4 caller. Gomez, 768 F.3d at 879. Here, Ewing fails to plausibly plead facts sufficient to 5 establish that basis. The TAC contains conclusively allegations that “[b]ut for Stall hiring, 6 and paying US Global . . . US Global would not have called Ewing in violation of the 7 TCPA.” (TAC ¶ A.h.) The TAC continues, “Stall empowered US Global to violate the 8 TCPA by contracting with US Global to make illegal robocalls to the database that Stall 9 paid them to call, which included Ewing’s (and Stark’s) DNC registered telephone 10 numbers.” (Id. ¶ A.r.) Courts have rejected similar general and conclusory allegations. See 11 Canary v. Youngevity Int’l, Inc., No. 5:18-cv-03261-EJD, 2019 U.S. Dist. LEXIS 46429, 12 at *5 (N.D. Cal. Mar. 20, 2019) (rejecting allegations that defendant “‘allow[ed]’ 13 autodialed and prerecorded calls ” as conclusory); see also Pascal v. Agentra, LLC, No. 14 19-cv-02418-DMR, 2019 U.S. Dist. LEXIS 179359, at *9 (N.D. Cal. Oct. 16, 2019) 15 (rejecting allegations that defendant hired the third-party caller to market defendant’s 16 services by “calling[ing] thousands of phones at a time using an artificial or prerecorded 17 voice message” as conclusory). The Court need not accept Ewing’s conclusory allegations. 18 Twombly, 550 U.S. at 555. 19 As the Court instructed Ewing in its last order, the facts do not show Stall actually 20 authorized US Global to violate the TCPA in order to acquire real estate appointments. In 21 the TAC, Ewing alleges Stall admitted to paying US Global to make telephone setting 22 appointments for Stall. (TAC ¶ A.o.) Ewing further alleges Stall directed the content of the 23 telephone calls. (Id. ¶ S.) However, without more, these facts do not support a theory that 24 US Global had actual authority to violate the TCPA on Stall’s behalf. As Stall correctly 25 26 27 28 1 In Gomez, the Supreme Court ruled on the following two issues unrelated to Ewing’s claim: (1) an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s claim and (2) government contractors only obtain immunity for actions they take pursuant to their contract with the government. Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016), as revised (Feb. 9, 2016). 6 19-cv-00366-AJB-AHG 1 argues, these “allegation[s] confirm[] that US Global was setting real estate appointments 2 for Stall, not that Stall controlled, authorized, or even knew about US Global’s 3 telemarketing violations.” (Doc. No. 36-1 at 7.) Ewing does not plead sufficient facts above 4 the speculative level as to both an agency relationship and actual authority to place the 5 unlawful calls. Therefore, Ewing’s claim of actual authority fails. 6 7 b) Ewing Does Not Plead Sufficient Facts to Support a Theory of Apparent Authority 8 Apparent authority is an agency theory by which “a principal can be held liable for 9 the legal consequences of its agent’s conduct” where the agent “act[s] with apparent 10 authority in its dealings with a third party purportedly on behalf of the principal[.]” Jones, 11 887 F.3d at 449. “Apparent authority arises from the principal’s manifestations to a third 12 party that supplies a reasonable basis for that party to believe that the principal has 13 authorized the alleged agent to do the act in question.” N.L.R.B. v. Dist. Council of Iron 14 Workers of the State of Cal. & Vicinity, 124 F.3d 1094, 1099 (9th Cir. 1997) (citing 15 N.L.R.B. v. Donkin’s Inn, 532 F.2d 138, 141 (9th Cir. 1976)). Apparent authority can only 16 “be established by proof of something said or done by the [alleged principal], on which 17 [the plaintiff] reasonably relied.” Id. 18 Here, the TAC does not plead sufficient facts to support an apparent authority theory 19 that Stall is vicariously liable for the alleged telemarketing calls. Ewing does not allege 20 that he reasonably relied, much less to his detriment, on something Stall has said or done. 21 Ewing fails to allege reliance on US Global’s alleged apparent authority to violate the 22 TCPA on Stall’s behalf. See Thomas v. Taco Bell Corp., 582 F. App’x 678, 679–80 (9th 23 Cir. 2014) (holding plaintiff failed to plead apparent authority theory where the “[plaintiff] 24 has not shown that she reasonably relied, much less to her detriment, on the apparent 25 authority with which the [defendant] allegedly cloaked the [third parties to violate the 26 TCPA]”). Moreover, as with actual authority, Stall paying US Global to make real estate 27 appointments or directing the content of phone calls does not support a theory of agency 28 liability based on apparent authority. Therefore, Ewing’s claim of apparent authority fails. 7 19-cv-00366-AJB-AHG 1 2 c) Ewing Does Not Plead Sufficient Facts to Support a Theory of Ratification 3 Finally, ratification is “the affirmance of a prior act done by another, whereby the 4 act is given effect as if done by an agent acting with actual authority.” Kristensen v. Credit 5 Payment Servs. Inc., 879 F.3d 1010, 1014 (9th Cir. 2018) (quoting Restatement (Third) of 6 Agency § 4.01(1)). A party can ratify a third party’s act if the third-party acts as the agent 7 or purports to be the agent on the party’s behalf. Henderson v. United Student Aid Funds, 8 Inc., 918 F.3d 1068, 1074 (9th Cir. 2019) (citing Restatement (Third) of Agency § 4.01 9 cmt. b). Therefore, when an actor is not an agent or does not purport to be one, the doctrine 10 of ratification does not apply. 11 Here, the TAC fails to sufficiently establish Stall affirmed the prior calls in question 12 under a ratification theory. As discussed above, Ewing does not sufficiently allege an 13 agency relationship between Stall and US Global. Moreover, Ewing does not sufficiently 14 allege US Global purported to be the agent of Stall. This case stands in stark contrast to 15 Henderson. In Henderson, the Ninth Circuit found ratification when third-party callers 16 purported to be the agent of the defendant and “negotiated, deferred, and took payments on 17 [the defendant’s] behalf.” Id. The court held that there was evidence that the defendant 18 communicated consent to the debt collectors through acquiescence in their calling practices 19 that allegedly violated the TCPA. Id. at 1075. Unlike Henderson, Ewing does not 20 sufficiently allege US Global purported to be Stall’s agent, or that Stall ratified US Global’s 21 actions. When Ewing received the alleged telemarking robocalls, Ewing claims “‘Dave’ 22 came on the line and introduced himself as being with ‘Global Realty.’” (TAC ¶ 8.) This 23 is not sufficient to allege US Global represented itself to be Stall’s agent. Therefore, the 24 doctrine of ratification does not apply because Ewing does not sufficiently allege an agency 25 relationship between Stall and US Global or that US Global purported to be Stall’s agent. 26 B. Ewing’s Failure to Follow the Court’s Orders and Comply with Local Rules 27 Stall argues Ewing’s repeated refusal to follow the Court’s orders and the Local 28 Rules merits dismissal under Local Rule 41(b). (Doc. No. 36-1 at 8.) Previously, the Court 8 19-cv-00366-AJB-AHG 1 ordered Ewing to not include settlement discussions in his pleadings or other court filings. 2 (Doc. No. 14 at 7.) Additionally, the Court acknowledged that Ewing “has been placed on 3 notice of the local rules on professionalism and their application to him by this Court in the 4 past.” (Id.) Yet, Ewing ignored the Court’s order and improperly included a settlement 5 offer allegedly made by Stall in exchange for information on US Global in Ewing’s Second 6 Amended Complaint (“SAC”). (SAC ¶ GG.) Thus, the Court struck SAC ¶ GG and again 7 reminded Ewing that he must not include settlement discussions in his pleadings or other 8 court filings. (Doc. No. 34 at 4.) 9 Now, Stall correctly argues that Ewing failed to follow Local Civil Rule 15.1(c). 10 (Doc. No. 36-1 at 9.) Rule 15.1(c) provides, “[a]ny amended pleading filed after the 11 granting of a motion to dismiss or motion to strike with leave to amend, must be 12 accompanied by a version of that pleading that shows—through redlining, underlining, 13 strikeouts, or other similarly effective typographic methods—how that pleading differs 14 from the previously dismissed pleading.” Civ. L.R. 15.1(c). Ewing claims he complied with 15 Rule 15.1(c) by including the language “the following are the amended allegations” at the 16 beginning of the TAC. (Doc. No. 38 ¶ 10.) However, the plain meaning of the rule requires 17 two copies of the pleading—the amended pleading and a version of the pleading that shows 18 how the amended pleading differs from its predecessor. Here, Ewing failed to file a version 19 of the TAC that effectively shows how the TAC differs from the SAC. Ewing argues “[t]he 20 TAC complied with LR 15.1(c) by setting forth 16 pages of amended allegations that are 21 new and added[.]” (Id.) However, Ewing copied verbatim some of the “new and added” 22 TAC allegations from the SAC. (Compare TAC ¶ K, and TAC ¶ OO, with SAC ¶ F, and 23 SAC ¶ DD.) 24 Local Rule 15.1(c) is for the benefit of the Court and all parties. One of the purposes 25 of the rule is to aid the Court in determining a party’s compliance with an order. Rule 26 15.1(c) is not “a waste of time and effort” as Ewing asserts. (Doc. No. 38 at 6.) Contrary 27 to Ewing’s claim that “no other Judge in any other case has ever demanded a Rule 15.1(c) 28 comparison copy,” in the Southern District of California, (Id.), this district has consistently 9 19-cv-00366-AJB-AHG 1 enforced Civil Local Rule 15.1(c). See In re Regulus Therapeutics Inc. Sec. Litig., 406 F. 2 Supp. 3d 845, 864 (S.D. Cal. 2019) (ordering plaintiffs to comply with Civil Local Rule 3 15.1(c)); see also Nasser v. Julius Sammann Ltd., 2019 U.S. Dist. LEXIS 50907, at *9 4 (S.D. Cal. Mar. 25, 2019) (holding pro se plaintiffs’ pattern of noncompliance with Civil 5 Local Rule 15.1(c) and other local rules was grounds for dismissal). “Failure to follow a 6 district court’s local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52 7 (9th Cir. 1995); Civ. L.R. 41(b). After drafting multiple complaints and amended 8 complaints, Ewing is more than familiar with the Local Rules of this Court. 9 IV. CONCLUSION 10 The TAC fares no better than its three predecessors. Ewing fails to meet even the 11 relaxed requirements afforded to pro se litigants. “[T]he district court’s discretion to deny 12 leave to amend is particularly broad where plaintiff has previously amended the 13 complaint.” Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011) 14 (internal citations omitted). For the foregoing reasons, the Court GRANTS Stall’s motion 15 to dismiss, and DISMISSES Defendant Stall WITHOUT LEAVE TO AMEND. 16 Pursuant to Civil Local Rule 55.1 regarding default judgments, Ewing has also failed 17 to timely move for default judgment against Defendant US Global within thirty days of the 18 entry of a default, (Doc. No. 27). Ewing is ordered to show cause by May 31, 2021 why 19 US Global should be not dismissed as well. Failure to show cause will result in dismissal 20 of Defendant US Global. 21 22 23 IT IS SO ORDERED. Dated: May 18, 2021 24 25 26 27 28 10 19-cv-00366-AJB-AHG
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