United States District Court, S.D. California
CLAUDINE OSGOOD, an individual, and ANTON EWING, an individual, Plaintiff,
MAIN STREAT MARKETING, LLC, a Utah limited liability company; JERROD ROBKER, an individual aka Jerrod McAllister; Does 1-100, ABC Corporations 1-100, XYZ, LLC's 1-100, Defendant.
ORDER DENYING PLAINTIFF EWING'S MOTION FOR LEAVE
TO FILE AN AMENDED COMPLAINT AND DENYING PLAINTIFF
EWING'S MOTION FOR SUMMARY JUDGMENT [DKT. NOS. 53,
Gonzalo P. Curiel United States District Judge
the Court is Plaintiff Anton Ewing's motion for leave to
amend the complaint to add newly discovered Defendant, Local
Verifications, LLC d/b Local Engine Verification. (Dkt. No.
55.) Plaintiff Ewing also filed a motion for summary judgment
on all causes of action in the second amended complaint.
(Dkt. No. 53.) No opposition has been filed. Based on the
reasoning below, the Court DENIES Plaintiff's motion for
leave to file a second amended complaint and DENIES
Plaintiff's motion for summary judgment.
September 26, 2016, the case was removed from state court.
(Dkt. No. 1.) On October 4, 2016, Plaintiffs Anton Ewing and
Claudine Osgood, proceeding pro se, filed a first
amended complaint alleging three causes of action for
violations under the California Invasion of Privacy Act
(“CIPA”) pursuant to California Penal Code
section 630 et. seq.; the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), pursuant to
18 U.S.C. §§ 1962(c), and (d)); and the Telephone
Consumer Protection Act (“TCPA”) pursuant to 47
U.S.C. § 227. (Dkt. No. 11, FAC). After the Court denied
Plaintiff's motion to remand and granting in part and
denying in part Defendants' motion to dismiss and motion
to strike, Plaintiff filed a second amended complaint on
January 17, 2017. (Dkt. No. 36.) An answer was filed on
January 31, 2017. (Dkt. No. 37.) On March 27, 2017, the Court
granted defense counsel's motion to withdraw as counsel.
(Dkt. No. 51.) In its order, the Court directed Main Streat
Marketing, LLC to obtain substitute counsel within thirty
days and have counsel file a notice of appearance.
(Id.) The Court also directed Defendant McAllister
to notify the Court of his current mailing address.
(Id.) Both Defendants have failed to comply. On
April 21, 2017, Plaintiff Ewing filed a motion for summary
judgment along with a motion for leave to file an amended
complaint. (Dkt. Nos. 53, 55.) Defendants have not filed an
Motion for Leave to File an Amended Complaint
Ewing seeks leave to file a third amended complaint after
learning the name of the fictitious entity named in the
second amended complaint to be Local Verifications, LLC dba
Local Engine Verification. Plaintiff Osgood has not joined in
Federal Rule of Civil Procedure (“Rule”) 15(a),
leave to amend a complaint after a responsive pleading may be
allowed by leave of the court and such leave “shall be
freely given when justice so requires.” Fed.R.Civ.P.
15(a). Granting leave to amend rests in the sound discretion
of the trial court. Internat'l Ass'n of
Machinists & Aerospace Workers v. Republic Airlines,
761 F.2d 1386, 1390 (9th Cir. 1985). This discretion must be
guided by the strong federal policy favoring the disposition
of cases on the merits and permitting amendments with
“extreme liberality.” DCD Programs Ltd. v.
Leighton, 833 F.2d 183, 186 (9th Cir. 1987). “Five
factors are taken into account to assess the propriety of a
motion for leave to amend: bad faith, undue delay, prejudice
to the opposing party, futility of amendment, and whether the
plaintiff has previously amended the complaint.”
Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.
2004) (citing Nunes v. Ashcroft, 348 F.3d 815, 818
(9th Cir. 2003)). Of these considerations, “it is the
consideration of prejudice to the opposing party that carries
the greatest weight.” Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003) (per curiam). “Absent prejudice, or a strong
showing of any of the remaining [four] factors, there exists
a presumption under Rule 15(a) in favor of granting leave to
amend.” Id. In this case, Plaintiff Ewing has
failed attach a copy of the proposed amended pleading and a
redlined version of the proposed amended pleading as required
by Civil Local Rule 15.1(b). Moreover, while Plaintiff Ewing
seeks to add a defendant to the case, Plaintiff Osgood has
not. It is not clear whether Plaintiff Osgood will be named
in a proposed third amended complaint and Plaintiff Ewing has
not provided any legal authority that he may move to file an
amended complaint without Plaintiff Osgood. Thus, the Court
DENIES Plaintiff Ewing's motion for leave to file a third
Motion for Summary Judgment
Plaintiff Ewing, but not Plaintiff Osgood, moves for summary
judgment seeking judgment on all causes of action against
both Defendants based on “admissions” made by
Defendants in a signed settlement agreement with Plaintiffs
Osgood and Ewing.
Rule of Civil Procedure 56 empowers the Court to enter
summary judgment on factually unsupported claims or defenses,
and thereby "secure the just, speedy and inexpensive
determination of every action." Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment
is appropriate if the "pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact
is material when it affects the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
moving party bears the initial burden of demonstrating the
absence of any genuine issues of material fact. Celotex
Corp., 477 U.S. at 323. The moving party can satisfy
this burden by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element of his
or her claim on which that party will bear the burden of
proof at trial. Id. at 322-23. If the moving party
fails to bear the initial burden, summary judgment must be
denied and the court need not consider the nonmoving
party's evidence. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 159-60 (1970).
summary judgment motion is unopposed, a district court must
“determine whether summary judgment is appropriate-that
is, whether the moving party has shown itself to be entitled
to judgment as a matter of law.” Leramo v. Premier
Anesthesia Med. Grp., 09cv2083 LJO JTL, 2011 WL 2680837,
at *8 (E.D. Cal. July 8, 2011), aff'd, 514 Fed.
App'x 674 (9th Cir. 2013). A district court “cannot
base the entry of summary judgment on the mere fact that the
motion is unopposed, but, rather must consider the merits of
the motion.” Id. (quoting United States v.
One Piece of Real Property, 363 F.3d 1099, 1101 (11th
Cir. 2004)). A court “need not sua sponte review all of
the evidentiary materials on file at the time the motion is
granted, but must ensure that the motion itself is supported
by evidentiary materials.” Id. (quoting
One Piece of Real Property, 363 F.3d at 1101). A
motion for summary judgment must be supported by admissible
evidence. Fed.R.Civ.P. 56(c)(1); Orr v. Bank of America,
NT & SA, 285 F.3d 761, 773 (9th Cir. 2002);
Beyene v. Coleman Sec. Serv., Inc., 854 F.2d 1179,
1181 (9th Cir. 1988) (“It is well settled that only
admissible evidence may be considered by the trial court in
ruling on a motion for summary judgment.”).
Plaintiff has not presented any admissible evidence to
support his motion and has failed to carry his burden under
Rule 56. He merely presents allegations and unauthenticated
portions of the settlement agreement to prove that Defendants
have violated provisions of the TCPA, CIPA and RICO. However,
these allegations presented in his brief are not supported
with any admissible evidence.
also provides the recital portion of the alleged settlement
agreement to show that Defendants are liable for violations
alleged in the second amended complaint. However, statements
contained in a settlement agreement are generally
inadmissible to prove or disprove the validity or amount of a
disputed claim. See Fed.R.Evid. 408; see also
McCown v. City of Fontana, 565 F.3d 1097, 1104 n.4 (9th
Cir. 2009). Therefore, the factual recitals in the settlement
agreement are inadmissible as they are not ...