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Park v. Webloyalty.Com, Inc.

United States District Court, S.D. California

June 19, 2015

KEVIN PARK, Plaintiff,


LARRY ALAN BURNS, District Judge.

On September 29, 2014, the Court dismissed Plaintiff Kevin Park's second amended complaint ("SAC") without prejudice. The order of dismissal (the "Dismissal Order") required Park, if he thought he could amend, to file an ex parte application showing that he could do so. Park has now moved for leave to amend, requesting oral argument. The motion also requests leave to add a new plaintiff, Madelaine Ginsberg, a Florida resident.

The Court may, but is not required to hold oral argument. See Civil Local Rule 7.1(d)(1) and Chamber Standing Order, § 8. Here, it does not appear that oral argument is necessary, and the Court will rule on the request without a hearing.

Legal Standards

Following dismissal of a complaint, leave to amend is ordinarily granted, but leave to amend need not be granted if amendment would be futile or if the amended complaint would not withstand a motion to dismiss. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). The Dismissal Order explained the defects in the SAC, and told Park what he would need to do in order to amend successfully. If the proposed third amended complaint ("TAC"), which is attached to Park's application, fails to remedy those defects, it would appear he cannot do so.

When determining whether a complaint states a claim, the Court accepts all allegations of material fact in the complaint as true and construes them in the light most favorable to the non-moving party. Cedars-Sinai Medical Center v. National League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007) (citation omitted). But the Court is "not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint, " and does "not... necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citations and quotation marks omitted). Furthermore, conclusory allegations, unwarranted deductions, or unreasonable inferences need not be accepted as true. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004).

Under Fed.R.Civ.P. 8(a)(2), only "a short and plain statement of the claim showing that the pleader is entitled to relief, " is required, in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level...." Id. at 555. "[S]ome threshold of plausibility must be crossed at the outset" before a case is permitted to proceed. Id. at 558 (citation omitted). The well-pleaded facts must do more than permit the Court to infer "the mere possibility of conduct;" they must show that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).


The heart of Park's claim is that he was tricked into enrolling online in a fee-based membership program. While making a purchase on the Gamestop website, he was offered a $10.00 coupon good on his next Gamestop purchase. When he clicked on the coupon, a new window opened and Park was asked to provide his email address, which he did. He clicked on an "acceptance" button. He does not remember seeing any explanation that he was enrolling in a membership program with He did not provide his debit card information to Webloyalty. Rather, Gamestop provided that information to Webloyalty by means of the "data pass" process, which was later prohibited by the Restore Online Shoppers' Confidence Act (ROSCA), 15 U.S.C. U.S.C. §§ 8401, et seq., although it was legal at the time the transaction was consummated. Park was charged $12.00 per month from June, 2010 until April, 2011, when he discovered the charges and obtained a partial refund.

The Court already ruled on many issues presented here, and the reasoning and analysis of its earlier order of dismissal (Docket no. 37) is incorporated by reference into this order. That reasoning is not repeated here, except as necessary for clarity.

Proposed Amendments

The TAC introduced only a few substantial amendments. One group of amendments alleges that Park was not looking for, and did not see disclosures regarding the nature of the transaction he was entering into. See TAC, ¶¶ 17-19. A second proposed amendment says Park does not know what portion of his payments the $48 refund represented, but he assumes it was attributable to the entire period. Id., ¶ 20. A third proposed amendment alleges Park could not have discovered the first charge to his account until he received his written bank statement in the mail, around July 5, 2009. Id., ¶ 8. Several paragraphs also add conclusory allegations that Webloyalty's practices were known to be deceptive and to violate the law. Id., ¶¶ 16, 28, 33.

Claims Arising from Alleged Deception Regarding the Nature of the Transaction

Although Park identified a number of different statutes and theories, the essence of most of his claims is that the nature of the transaction he was entering into with Webloyalty was not properly or ...

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