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VONGRABE v. SPRINT PCS

March 29, 2004.

BERNT W. VONGRABE, Petitioner; V. SPRINT PCS, Respondent


The opinion of the court was delivered by: JAMES STIVEN, Magistrate Judge

ORDER (1) DENYING PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT [105-1]; (2) GRANTING DEFENDANT'S MOTION TO DISMISS [109-1]; (3) DENYING DEFENDANT'S REQUEST FOR JUDICIAL NOTICE [111-1]; (4) DENYING PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE [126-1] AND [128-1]; and (5) DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT
I. INTRODUCTION
Before this Court is (1) Plaintiff's motion for default judgment, (2) Defendant's motion for involuntary dismissal, and (3) judicial notice requests presented by both parties. Plaintiff also notified this Court that he intended to call defense counsel, Daniel Pascucci, as a witness during the oral argument hearing on these motions. This Court held oral argument on both motions on March 11, 2004 at 9:00 a.m. and took the motions under submission. During the hearing, Plaintiff withdrew his intent to call Mr. Pascucci as a witness.

For the reasons stated herein, this Court (1) DENIES Plaintiff's motion for entry of default judgment [105-1], (2) GRANTS Defendant's motion to dismiss [109-1], (3) DENIES Defendant's Page 2 request for judicial notice [111-1], and (4) DENIES Plaintiff's request for judicial notice [126-1] and [128-1]. Plaintiff's Second Amended Complaint [103-1] is DISMISSED for lack of subject matter jurisdiction.

  II. BACKGROUND

  Plaintiff is an individual, proceeding pro se, and originally filed this complaint as an adversary proceeding in a bankruptcy case. The instant case arises from a dispute between Plaintiff and Sprint PCS regarding Sprint PCS's Equipment Replacement Program. Plaintiff purchased a wireless phone and began participating in the Program for a fee of $4 per month on or about December 16, 2000. Plaintiff alleges that, despite his payment of necessary fees to Sprint, Sprint customer service agents refused to replace his phone after it was damaged. Plaintiff exchanged the phone with the dealer under the dealer's ninety — day exchange policy, paid an activation fee of $29.99 to activate the second phone, and demanded reimbursement from Sprint. Plaintiff alleges that six months later, the desktop battery charger for his phone became damaged. Plaintiff believed the charger was also covered under the warranty, but Sprint refused to replace it. Plaintiff purchased another desktop charger for $39.74.

  Plaintiff alleged thirteen counts in the First Amended Complaint, including the Lanham Act, fraud, false advertising, concealment, warranty law violations, California Insurance Code violations, failure to settle, malice and oppression, and RICO. Plaintiff sought as damages $73,170 in compensatory damages, including pain and suffering and recovery of his cost for increased medication, and no less than $2.25 million in punitive damages.

  Plaintiff filed a motion for summary judgment on January 24, 2002, together with motions for leave to join parties and for leave to file a first amended complaint. On February 19, 2002, Plaintiff filed a motion for entry of default judgment. An order by District Judge Napoleon A. Jones, Jr. was filed on March 26, 2002, denying plaintiff's motion for leave to file an amended complaint,*fn1 denying the motion for summary judgment as moot, denying plaintiffs motion for default judgment against Sprint PCS, denying plaintiff's motion for leave to join parties, and dismissing Sprint Spectrum, L.P. from the action, Page 3 based on voluntary dismissal by Plaintiff.*fn2 On May 23, 2002, Plaintiff filed a motion for an emergency temporary restraining order; the District Court denied Plaintiffs motion on May 28, 2002.

  On June 25, 2002, the District Court filed an order clarifying the status of Sprint Corporation. Plaintiff's original complaint was alleged against "Sprint PCS," "Sprint Corporation," and "Cox Communication PCS, L.P." However, because none of those defendants had any connection to Plaintiff's claims, Sprint Spectrum answered the complaint, asserting itself as a Defendant on behalf of and in place of "the erroneously named" Sprint Corporation. Although Plaintiff voluntarily dismissed Sprint Spectrum, the Court found that this dismissal did not affect the status of Sprint Corporation as a party to this action.

  Plaintiff again filed a motion for leave to file an amended complaint on June 27, 2002. On September 4, 2002, Magistrate Judge James F. Stiven issued an order accepting the first amended complaint. On December 10, 2002, Judge Jones signed a stipulation and consent/order of reference, permitting the instant case to proceed before Magistrate Judge Stiven pursuant to 28 U.S.C. § 6 36(c). On December 11, 2002, Judge Jones denied as moot Plaintiff's motion for reconsideration of the motion to join parties, Plaintiff's motion for modification of the June 25, 2002 order, Plaintiff's motion for an order entering default judgment, Plaintiff's motion for entry of default judgment on claim 1, and Plaintiff's motion for bifurcation of claim 2.

  On September 10, 2002, Defendant Sprint Corporation filed a motion to dismiss the first amended complaint for lack of personal jurisdiction. That same day, Defendant Sprint PCS filed a motion to dismiss the first amended complaint for failure to state a claim and to strike. On December 12, 2002, Plaintiff filed a request for judicial notice of certain facts, cases, statements and admissions, findings, and public records.

  On September 18, 2003, Judge Stiven granted Defendant Sprint Corporation's motion to dismiss for lack of personal jurisdiction, granted, in part, Defendant Sprint PCS's motion to dismiss for failure to state a claim, denied Defendant Sprint PCS's motion to strike, denied, in part, Plaintiff's motion to take judicial notice, and granted Plaintiff leave to file a second amended complaint ("SAC"). However, any Page 4 such SAC was to be filed in accordance with the findings of the September 18 Order. Plaintiff was to file any SAC by October 20, 2003.

  A telephonic status conference was held in chambers on November 4, 2003, at which point no such SAC had been filed. Plaintiff subsequently filed a motion for leave to file a SAC on November 10, 2003. This Court's Order of December 5, 2003 granted Plaintiff leave to file a SAC no later than January 12, 2004. This Court also ordered that any SAC filed must conform to the findings of this Court's Order of September 18, 2003 and notified Plaintiff that this Court will dismiss, on its own motion, any claims asserted which have already been dismissed or as to which the Court lacks jurisdiction. Plaintiff filed his SAC on January 12, 2004.

  On February 4, 2004, Plaintiff filed a motion for default judgment, filed mine pro tunc to February 2, 2004, along with a notice of intent to call Daniel Pascucci as a witness during the hearing on March 11, 2004. On February 4, 2004, Defendant filed a motion to dismiss, filed nunc pro tunc to February 2, 2004, along with a motion to strike and request for judicial notice. Both parties filed timely oppositions. This Court held oral argument on the motions on March 11, 2004 at 9:00 a.m.

  II. SECOND AMENDED COMPLAINT

  This Court's Order of September 18, 2003 ("Order") sua sponte granted Plaintiff leave to amend but warned Plaintiff that any SAC must comply with the September 18 Order. The Order granted Defendant Sprint Corporation's Rule 12(b)(6) motion to dismiss for lack of personal jurisdiction, finding both no basis for personal jurisdiction over Sprint Corporation and that Sprint PCS is not the alter ego of Sprint Corporation. Order at 8-22. As Sprint Spectrum L.P, has previously been dismissed by Plaintiff, the only remaining Defendant is Sprint PCS, which Defendant attests is correctly referred to as Sprint Telephony P.C.S. L.P. dba Sprint PCS ("Sprint PCS").

  This Court also granted, in part, Defendant Sprint PCS's Rule 12(b)(6) motion to dismiss for failure to state a claim. This Court dismissed, with prejudice, Plaintiff's allegations under the Lanham Act, Consumer Legal Remedies Act under Cal. Civ. Code § 1770, California Insurance Code § 790 (Unfair Practices Act), and RICO. Id. at 22-28, 32-35, and 36-40. This Court dismissed, without prejudice, Plaintiff's allegations under the Song — Beverly Consumer Warranty Act ("Song — Beverly Act"), punitive damages claim, and fraud claims. Id. 29-32, 35-36. This Court also denied Defendant Sprint Page 5 PCS's motion to strike the portion of Plaintiff's first amended complaint which sought recovery for mental and physical pain and suffering in the sum of $75,000, without prejudice, finding that such a claim may be appropriate if a valid tort cause of action could be maintained. Id. at 40-41.

  In addition to these findings, this Court granted Plaintiff leave to amend, provided Plaintiff follow the specific instructions given regarding any SAC filed. As to the Song — Beverly Act claim, this Court directed Plaintiff that if he were to include such a claim in his SAC, Plaintiff was to "specifically plead what specific requirements of § 1794.4 or other provisions of the Song — Beverly Act were not complied with and what damages were suffered by such omissions." Id. at 36, lines 3-5. As to Plaintiff's claim for punitive damages, this Court instructed Plaintiff that any further pursuit of punitive damages must be based on claims in tort, not an alleged breach of a service plan contract. Id., at 36, lines 10-22. Furthermore, this Court warned Plaintiff that he "is not eligible for punitive damages unless the underlying claims for fraud, oppression, or malice are proven by clear and convincing evidence." Id. at lines 15-16. As to Plaintiffs fraud allegations, this Court instructed Plaintiff that "any such SAC ...


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