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Brinker v. Normandin's

United States District Court, N.D. California, San Jose Division

April 21, 2017

ALAN BRINKER, et al., Plaintiffs,
v.
NORMANDIN'S, et al., Defendants.

          ORDER GRANTING MOTION FOR RECONSIDERATION RE: DKT. NO. 145

          EDWARD J. DAVILA United States District Judge.

         Plaintiffs move for reconsideration of this Court's order granting Defendants' motion to dismiss for lack of subject-matter jurisdiction. Plaintiffs' motion will be GRANTED.

         I. BACKGROUND

         Plaintiffs allege that Defendants Normandin's and OneCommand, Inc. violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A), by placing automated calls to Plaintiffs' phones.[1] Second Am. Class Action Compl. (“SAC”) ¶¶ 69-76, Dkt. No. 127. Brinker received one call, which went to voicemail; he listened to the message, called to confirm that Normandin's left the message, and hung up. Id. ¶¶ 27-28; Dkt. No 130 at 3. Rugg and Sanders each received “approximately five or six” calls; it is unclear whether they answered the calls or listened to voicemail messages. Id. ¶¶ 38-40, 51-53; Dkt. No. 132 at 2.

         OneCommand moved to dismiss Plaintiffs' complaint for lack of subject-matter jurisdiction Fed.R.Civ.P. 12(b)(1). Dkt. No. 130. This Court granted OneCommand's motion on the basis that Plaintiffs lacked standing because they failed to allege a concrete injury. Dkt. No. 141. Now, Plaintiffs argue that a recent Ninth Circuit decision requires a different result.

         II. LEGAL STANDARD

         A. Motion for Reconsideration

         Fed. R. Civ. P. 59(e) is the “proper vehicle” for filing a motion for reconsideration of a motion to dismiss without leave to amend. Mir v. Fosburg, 646 F.2d 342, 344 (9th Cir. 1980). “Under Rule 59(e), a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

         B. Rule 12(b)(1)

         Dismissal under Fed.R.Civ.P. 12(b)(1) is appropriate if the complaint fails to allege facts sufficient to establish subject-matter jurisdiction. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). The Court “is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The nonmoving party bears the burden of establishing jurisdiction. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

         C. Article III Standing

         To have standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). The plaintiff bears the burden of proving these elements. Id.

         The plaintiff's injury must be “particularized” and “concrete.” Id. at 1548. To be particularized, it “must affect the plaintiff in a personal and individual way.” Id. To be concrete, it must be real, not abstract. Id. at 1548-49. A concrete injury can be tangible or intangible. Id. A statutory violation alone is not enough; the plaintiff must also allege a concrete harm. Id. at 1549 (a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirements of Article III”).

         If the plaintiff lacks Article III standing, then the case must be dismissed for lack of subject-matter jurisdiction. Steel Co. v. Citizens for a ...


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