United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
LEAVE TO AMEND
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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).
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).
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.
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.
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)
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 ...