United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION FOR RECONSIDERATION RE: DKT.
J. DAVILA United States District Judge.
move for reconsideration of this Court's order granting
Defendants' motion to dismiss for lack of subject-matter
jurisdiction. Plaintiffs' motion will be GRANTED.
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. 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.
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.
Motion for Reconsideration
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).
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.
Article III Standing
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.
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”).
plaintiff lacks Article III standing, then the case must be
dismissed for lack of subject-matter jurisdiction. Steel
Co. v. Citizens for a ...