Stavrinides v. Pacific Gas and Electric Co.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO AMEND

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this civil action provoked by telephone calls to collect a debt, plaintiff moves for leave to amend following an order of dismissal. For the reasons explained below, plaintiff's motion is Granted in part and Denied in part.

         STATEMENT

         Pro se plaintiff Elias Stavrinides filed a lawsuit against defendant Pacific Gas & Electric Company in July 2015, asserting claims for violations of the Telephone Consumer Protection Act, Fair Debt Collection Practices Act, and California's Rosenthal Act (Case No. 15-cv-3118 WHA). Plaintiff based all of his claims on an automated phone call he received from PG&E in April 2015. PG&E promptly filed a motion to dismiss that complaint. Plaintiff failed to respond to the motion, so an order to show cause issued. Plaintiff did not respond to that order either, so a second order to show cause issued, warning that not responding would result in dismissal for failure to prosecute. Plaintiff failed to respond, so an order then dismissed plaintiff's case for failure to prosecute. Judgment was entered against him.

         Plaintiff commenced this action in January 2016, three months after his previous case was dismissed. Plaintiff asserted substantially the same claims with two substantive differences. First, plaintiff alleged that he received automated phone calls in February, May and July of 2015 (all of which he received before filing the 2015 complaint) and another call in January 2016. Second, plaintiff added a claim for intentional infliction of emotional distress. The new complaint essentially alleged that PG&E engaged in a years-long scheme to intentionally and maliciously harass him via automated calls requesting payment of a debt.

         Defendant promptly moved to dismiss and dismissal was granted. The dismissal order gave plaintiff the opportunity to file a motion for leave to amend. Plaintiff filed the instant motion and appended a proposed amended complaint reciting the same TCPA and intentional infliction of emotional distress claims.

         ANALYSIS

         Under Rule 15, leave to amend should be freely given absent undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies, futility of amendment, and prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). The general rule that parties be allowed to amend does not extend to situations where amendment would be an exercise in futility or where the amended complaint would also be subject to dismissal. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

         The doctrine of res judicata precludes an action when there is: (1) a final judgment on the merits, (2) privity between the parties, and (3) an identity of claims. United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1150 (9th Cir. 2011). The most important criterion in determining the identity of claims is whether the two actions arise out of "the same transactional nucleus of facts." This inquiry "is the same inquiry as whether the claim could have been brought in the previous action." Id. at 1151. Res judicata thus precludes claims that could have been raised in the previous action but were not. Hiser v. Franklin, 94 F.3d 1287, 1290-91 (9th Cir. 1996).

         Here, res judicata bars the lion's share of the proposed amended complaint. The dismissal of the previous action for failure to prosecute was a final judgment on the merits under Rule 41(b), which clearly provides that a dismissal for failure to prosecute "operates as an adjudication on the merits" unless the order states otherwise. The previous action also involved the same parties. Moreover, the first three claims of the proposed amended complaint alleging violations of the TCPA are based on calls that plaintiff received from PG&E before filing the 2015 complaint. The claims arise out of the same nucleus of fact as the 2015 action and are barred by res judicata.

         In his proposed amended complaint, plaintiff argues that each phone call is "separate and distinct" and therefore not subject to the doctrine of res judicata (Proposed First Amd. Compl. ¶¶ 12, 15, 17, 20). Not so. The claims based on the February, May, and July 2015 phone calls could have been raised in the 2015 complaint. Accordingly, those claims are barred by res judicata.

         The TCPA claim based on the January 2016 call, however, is not barred by res judicata and states a valid claim. This Court's order dismissing plaintiff's most recent complaint provided that to state a claim under the TCPA based on the January 2016 phone call, plaintiff needed to allege facts plausibly demonstrating that he was charged for the call and that PG&E used an automatic telephone dialing system (Dkt. No. 24). The previous order, however, did not acknowledge the TCPA's use of the disjunctive "or." Under the TCPA, a defendant is prohibited from making "any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call." 47 U.S.C. 227(b)(1)(A)(iii) (emphasis added). The operative terms are connected by the conjunction "or, " which "is almost always disjunctive, that is, the words it connects are to be given separate meanings." Loughrin v. United States, - U.S. -, 134 S.Ct. 2384, 2390 (2013). Thus, the TCPA "prohibits using an automatic telephone dialing system, an artificial voice, or a prerecorded voice" to call a cell phone or any service for which the called party is charged for the call. Iniguez v. The CBE Group, 969 F.Supp.2d 1241, 1247-48 (E.D. Cal. 2013) (Judge John Mendez) (emphasis added).

         Plaintiff alleges in both his complaint and his proposed amended complaint that PG&E called his cell phone using "artificial or prerecorded voices, leaving a prerecorded message." He further alleges in his proposed amended complaint that "[t]he call was not made by human hands nor [sic] any conversation with [sic] a human being" (Proposed First Amd. Compl. ¶ 19). That the call was made using an artificial or prerecorded voice is a factual allegation based on plaintiff's own experience in answering the call and is not a legal conclusion. See Vaccaro v. CVS Pharmacy, Inc., No. 13-CV-174-IEG RBB, 2013 WL 3776927, at *2 (S.D. Cal. July 16, 2013) (Judge Irma Gonzalez). Plaintiff did not need to additionally allege that an automatic ...