Goodell et al v. Berkshire Hathaway Automotive Incorporated, No. 2:2020cv01657 - Document 71 (D. Ariz. 2023)
Court Description: ORDER granting Defendant BHA's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 55 ) as to the claim asserted against it. The claim against Defendant BHA is dismissed for lack of jurisdiction. Plaintiffs' claim against Defendants Chvt Motors, LLC and Showcase Motors, LLC will proceed. The Court will set a telephonic scheduling conference by separate Order. Signed by Judge John J Tuchi on 3/29/23. (SMF)
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Goodell et al v. Berkshire Hathaway Automotive Incorporated 1 Doc. 71 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Brian Goodell, et al., 9 Plaintiffs, 10 11 v. 12 BH Automotive, LLC, et al. 13 No. CV-20-01657-PHX-JJT ORDER Defendants. 14 15 At issue is the Motion to Dismiss Plaintiffs’ Second Amended Complaint (Doc. 55, 16 “MTD”) filed by Defendant BH Automotive, LLC (“BHA”), to which Plaintiffs filed a 17 Response in opposition (Doc. 60, “Resp.,” unredacted version under seal)1 and in support 18 of which BHA filed a Reply (Doc. 70). The Court finds this matter appropriate for 19 disposition without oral argument, see LRCiv 7.2(f), which none of the parties have 20 requested in any event. Having considered the arguments and evidence presented by the 21 parties, the Court grants BHA’s Motion to Dismiss for the reasons set forth below. 22 I. BACKGROUND 23 The instant Motion to Dismiss follows the Court’s Order of September 22, 2021 24 (Doc. 41, “MTD Order”), in which the Court denied without prejudice BHA’s prior motion 25 to dismiss challenging the Court’s subject-matter jurisdiction over the claim against BHA. 26 27 1 28 Plaintiffs lodged a redacted version of their Response and accompanying exhibits, which the Court ordered filed on the public docket (Doc. 63). Because it refrains from referencing or discussing information under seal, the Court files this Order on the public docket. Dockets.Justia.com 1 The Court authorized Plaintiffs to conduct limited jurisdictional discovery and permitted 2 BHA thereafter to file another motion to dismiss for lack of subject-matter jurisdiction. 3 The Court described the nature of Plaintiffs’ claim and the procedural history of the 4 case up to that point in its prior MTD Order. In a nutshell, Plaintiffs seek relief under the 5 Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, on behalf of themselves 6 and a putative class of similarly situated persons and entities, for repeated, unsolicited calls 7 from car dealerships promoting their vehicles. Plaintiff Wolski alleges that starting in 8 August 2018, she received three or four such calls from Chv Motors, LLC dba Camelback 9 Kia, from which she had previously purchased two vehicles in 2011 and 2015. Plaintiff 10 Goodell alleges that starting in approximately July 2019, he received at least ten such calls 11 from Showcase Honda, LLC dba Showcase Honda, from which he had purchased a vehicle 12 in 2017. Both dealerships are located in Phoenix, Arizona. 13 Plaintiffs allege that their experiences are representative of a pattern of unlawful 14 calls made by car dealerships associated with Berkshire Hathaway Automotive, an 15 automotive group based in Irving, Texas. Plaintiffs initially named as defendant Berkshire 16 Hathaway Automotive, Inc. (“BHAI”), a holding company with an ownership interest in 85 17 car dealerships throughout the United States, including the two dealerships that placed the 18 offending calls to Plaintiffs. (Doc. 13-1, First Declaration of Assane Faye (“First Faye 19 Decl.”) ¶¶ 6, 7.) After BHAI moved to dismiss the Complaint for lack of subject-matter 20 jurisdiction, Plaintiffs filed a First Amended Complaint naming BHA as defendant in its 21 place (Doc. 16, “FAC”).2 BHA is a Delaware limited liability company and wholly owned 22 subsidiary of BHAI. (First Faye Decl. ¶¶ 1–2.) Plaintiffs allege that BHA is vicariously 23 liable for the car dealerships’ offending calls under the TCPA. 24 BHA then brought its own motion to dismiss, arguing Plaintiffs lack standing to 25 assert a TCPA claim against BHA and the Court therefore lacks subject-matter jurisdiction 26 over the claim. In its prior Order, the Court agreed and found, based on the evidence then 27 2 28 The FAC specifically named as defendant Van Tuyl Group, LLC, dba Berkshire Hathaway Automotive. In the interim between the filing of the FAC and the operative Second Amended Complaint, Van Tuyl Group, LLC changed its legal name to BH Automotive, LLC. (See MTD at 2 n.1.) The Court refers to the entity as “BHA.” -2- 1 before it, that Plaintiffs did not have standing to assert a TCPA claim against BHA. (MTD 2 Order at 4–7.) The Court declined to dismiss the FAC outright, however, and exercised its 3 discretion to allow Plaintiffs jurisdictional discovery on the issue. (MTD Order at 7–10.) 4 After several extensions of the deadline for completion of jurisdictional discovery, 5 Plaintiffs filed the operative Second Amended Complaint (Doc. 49, “SAC”). The SAC 6 names as defendants not only BHA, but also the two car dealerships that placed the 7 offending calls, Chv Motors, LLC, and Showcase Honda, LLC (collectively, the “Car 8 Dealerships”). Among other changes, the SAC also adds new allegations pertaining to 9 BHA’s vicarious liability under the TCPA. (See SAC ¶¶ 79–103.) The Car Dealerships 10 timely filed Answers to the SAC. (Docs. 56 and 57.) BHA filed the instant Motion to 11 Dismiss. BHA maintains that even after jurisdictional discovery, Plaintiffs fail to produce 12 evidence to support their theory of vicarious liability and therefore lack standing to sue 13 BHA, depriving this Court of subject-matter jurisdiction over the claim against BHA and 14 requiring dismissal of the same under Federal Rule of Civil Procedure 12(b)(1). 15 II. LEGAL STANDARD 16 The legal standard applicable to BHA’s Motion to Dismiss remains the same. To 17 bring a judicable lawsuit into Federal Court, Article III requires that one have “the core 18 component of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To 19 satisfy Article III’s standing requirements, a plaintiff must show that he or she suffered a 20 “concrete and particularized” injury that is “fairly traceable to the challenged action of the 21 defendant,” and that a favorable decision would likely redress the injury. Friends of the 22 Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). In the complaint, 23 the plaintiff must “alleg[e] specific facts sufficient” to establish standing. Schmier v. U.S. 24 Court of Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir. 2002). Accordingly, courts 25 should dismiss a plaintiff’s complaint if he or she has failed to provide facts sufficient to 26 establish standing. See, e.g., Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 27 1123 (9th Cir. 2010). 28 -3- 1 A motion to dismiss for lack of subject-matter jurisdiction brought pursuant to Rule 2 12(b)(1) may facially attack the existence of subject-matter jurisdiction or may challenge 3 the truth of the alleged facts that would confer subject-matter jurisdiction on the court. 4 Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ’g 5 Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). Courts are permitted 6 to consider evidence to decide a factual attack on subject-matter jurisdiction. Thornhill, 7 594 F.2d at 733. The party asserting jurisdiction has the burden of showing that the court 8 has subject-matter jurisdiction. See Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 9 1092 (9th Cir. 1990). Where a claimant lacks standing, the court must dismiss the action 10 for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). Ervine v. Desert View Reg. 11 Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014). 12 III. ANALYSIS 13 As before, BHA mounts a factual attack under the second and third prongs of the 14 Article III inquiry, arguing Plaintiffs’ injuries are neither traceable to, nor redressable by, 15 BHA. BHA asserts—and Plaintiffs do not dispute—that this inquiry turns on whether BHA 16 is vicariously liable under the TCPA. If it is not, then Plaintiffs cannot establish the 17 requisite “causal connection between the injury and the conduct complained of—the injury 18 [is not] fairly traceable to the challenged action of the defendant, . . . [but] the result of the 19 independent action of some third party . . . .” Lujan, 504 U.S. at 560 (cleaned up and citation 20 omitted).3 Likewise, it would be doubtful Plaintiffs could show that a favorable decision 21 against BHA would redress their injuries if BHA is not responsible for them in the first 22 place. See M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018). 23 The parties having litigated the proper defendant(s) in this matter for the better part 24 of two years, the question now before the Court is a narrow one. The Court already found 25 the issue of BHA’s vicarious liability central to, and intertwined with, the Court’s subject- 26 3 27 28 Here, the third parties alleged to have made the offending calls—the Dealership Defendants—are parties to this lawsuit. Nonetheless, for Plaintiff’s claim against BHA to survive, Plaintiffs must establish they have standing to sue BHA. See, e.g., In re Carrier IQ, Inc., 78 F. Supp. 3d 1051, 1068–69 (N.D. Cal. 2015) (“[T]o hold each defendant in the case, there must be at least one named plaintiff with standing to sue said defendant.”) -4- 1 matter jurisdiction. (MTD Order at 4–5.) Thus, to survive BHA’s Motion to Dismiss, 2 Plaintiffs have the burden to produce evidence showing there are material factual disputes 3 as to BHA’s vicarious liability. See Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 4 1987) (holding that to determine the existence of factual disputes, the district court should 5 “employ the standard applicable to a motion for summary judgment and grant the motion 6 to dismiss for lack of jurisdiction only if the material jurisdictional facts are not in dispute 7 and the moving party is entitled to prevail as a matter of law.”). Reviewing the evidence 8 then before it, the Court previously found Plaintiffs failed to create a disputed issue of 9 material fact regarding BHA’s vicarious liability. (MTD Order at 6–7.) The question now 10 is whether Plaintiffs have since presented sufficient evidence to meet their burden. 11 A defendant may be held vicariously liable for violations of the TCPA where the 12 plaintiff establishes an agency relationship, as defined by federal common law, between 13 the defendant and a third-party telemarketer who made the offending calls. Gomez v. 14 Campbell-Ewald Co., 768 F.3d 871, 877–89 (9th Cir. 2014), aff’d, 577 U.S. 153 (2016), 15 as revised (Feb. 9, 2016). Relying on the Restatement (Third) of Agency and deferring to 16 the Federal Communications Commission’s interpretation of the statute, the Ninth Circuit 17 has held a defendant may be vicariously liable under the TCPA based on theories of (1) 18 actual authority or “classical” agency; (2) apparent authority; or (3) ratification. Id.; see In 19 re Joint Petition Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574, 6574 (2013). Plaintiffs 20 advance arguments under each of these three theories, which the Court considers in turn. 21 A. 22 “Agency is the fiduciary relationship that arises when one person (a ‘principal’) 23 manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s 24 behalf and subject to the principal’s control, and the agent manifests assent or otherwise 25 consents so to act.” Restatement (3d) of Agency § 1.01. As an initial matter, BHA makes 26 much of the limiting terms of its Consulting Agreements with the Car Dealerships, which 27 define each as “an independent contractor and not as an agent or employee of the other.” 28 (MTD, Ex. A at 3; Ex. B at 17.) However, the Ninth Circuit has held the parties’ definition Actual Authority -5- 1 of their relationship is not controlling. Henderson v. United Student Aid Funds, Inc., 918 2 F.3d 1068, 1073 (9th Cir. 2019) (“[I]t is not dispositive, as [defendant] argues, that the 3 agreements between [defendant and the third parties] define their relationships as 4 independent contractors.”), as amended on denial of reh’g and reh’g en banc (May 6, 5 2019). Rather, the question of “whether an agency relationship exists is for a court to decide 6 based on an assessment of the facts of the relationship,” id., focusing on “the interaction 7 between the parties rather than their respective identities.” Gomez, 768 F.3d at 878. 8 Given the contractual arrangement between BHA and the Car Dealerships is not one 9 of principal-agent, however, Plaintiffs must point to other facts demonstrating that the 10 dealerships nonetheless have express or implied authority to act on behalf of BHA and that 11 BHA has a right to control the dealerships’ actions. See Restatement § 1.01 cmt. c. 12 Moreover, to establish BHA’s vicarious liability under an actual authority theory, Plaintiffs 13 “must do more than establish an agency relationship. They must also establish actual 14 authority to place the unlawful calls.” Jones v. Royal Admin. Servs., Inc., 887 F.3d 443, 15 449 (9th Cir. 2018). “Actual authority is limited to actions specifically mentioned to be 16 done in a written or oral communication or consistent with a principal’s general statement 17 of what the agent is supposed to do.” Id. (citation and quotation marks omitted). 18 Plaintiffs have not created a genuine dispute as to whether the Car Dealerships made 19 the offending calls with BHA’s actual authority. As noted, the Consulting Agreements do 20 not authorize the Car Dealerships to place calls on behalf of BHA, which styles itself a 21 management consultant. The evidence suggests the Car Dealerships placed the offending 22 calls on their own behalf—to sell their own vehicles—or, arguably, on behalf of BHAI, 23 which is majority owner of both the dealerships and BHA. (MTD, Ex. C, Third Declaration 24 of Assane Faye (“Third Faye Decl.”) ¶ 9.) While Plaintiffs’ evidence shows there is a great 25 deal of overlap between the various entities within BHAI’s automotive group—including 26 shared management staff, phone numbers, a mailing address in Texas, and email-address 27 domains—Plaintiffs produce no evidence to substantiate their allegation that BHA has an 28 ownership interest in the Car Dealerships. BHA has produced evidence it does not. (Id. -6- 1 ¶¶ 8, 10.) That BHA may benefit from the Car Dealerships’ telemarketing through 2 consulting fees, profit-sharing, or their shared corporate parent does not show that BHA 3 authorized the Car Dealerships to make the calls as BHA’s representative or that the Car 4 Dealerships were otherwise acting on BHA’s behalf when they made the calls. 5 Nor have Plaintiffs shown BHA has a right to control the Car Dealerships’ 6 telemarketing. The Consulting Agreements expressly disclaim “joint operational control” 7 between the entities. (MTD, Ex. A at 3; Ex. B at 17.) The agreements provide that each 8 Car Dealership “at all times retains complete control over the Dealership Business . . . [and] 9 may reject, overrule, amend, set aside, or ignore any advice or services provided by 10 [BHA].” (Id.) The agreements provide that each Car Dealership “retains responsibility for 11 all Dealership Business matters, including, but not limited to, its legal compliance and all 12 other matters arising out of its business operations.” (Id.) BHA’s Vice President of 13 Marketing, Assane Faye, confirmed BHA has no authority to control the Car Dealerships’ 14 telemarketing activities. (Third Faye Decl. ¶¶ 10–14; Reply Ex. A, Deposition of Assane 15 Faye (“Faye Dep.”) at 178:25–179:6.) Plaintiffs produce no evidence showing the entities 16 have interacted in a manner inconsistent with the Consulting Agreements since their 17 execution. While BHA provides detailed instructions, analysis, benchmarks, and training 18 pertaining to telemarketing, Mr. Faye testified that BHA’s non-binding recommendations 19 are just that. (E.g., Faye Dep. at 161:2–10, 205:19–206:5.) Plaintiffs have not produced 20 evidence to dispute that the Car Dealerships retain the right to reject BHA’s 21 recommendations. 22 Likewise, although BHA both facilitates and accesses the customer-relationship 23 management (“CRM”) system used by the Car Dealerships in their telemarketing activities, 24 Plaintiffs do not demonstrate this gives BHA a right to control the dealerships’ 25 telemarketing notwithstanding the express disclaimer of such right. Analogizing to the 26 FCC’s analysis in Dish Network, Plaintiffs allege that through the CRM, BHA permits the 27 Car Dealerships to “access . . . information and systems that normally would be within the 28 seller’s exclusive control.” (SAC ¶ 100.) See 28 F.C.C. Rcd. at 6592. But the examples -7- 1 given in Dish Network—“information regarding the nature and pricing of the seller’s 2 products and services or the seller’s customer information”—show the analogy is 3 inapposite here, where the Car Dealerships sell their own products. 28 F.C.C. Rcd. at 6592. 4 Plaintiffs point to Gomez, where the Ninth Circuit rejected the argument that a 5 marketing consultant could not be held vicariously liable for outsourcing transmission of 6 unsolicited texts on behalf of its client, the United States Navy. 768 F.3d at 878–79. In that 7 case, the Navy hired a marketing consultant to develop and execute a recruiting campaign 8 that included text messages, which were ultimately sent by a third party telemarketer. Id. 9 at 873. Holding the marketing consultant could still be liable despite outsourcing the text 10 messages, the Ninth Circuit analogized to a prior case in which it held a consultant 11 potentially liable for messages sent by a third party to whom it had outsourced its client’s 12 marketing campaign. Id. at 879 (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 13 952 (9th Cir. 2009)). The Ninth Circuit reasoned it would make little sense, as a matter of 14 policy, to impose liability on a merchant “for a campaign he entrusts to an advertising 15 professional, unless that professional is equally accountable for any resulting TCPA 16 violation.” Id. at 878–79. Similarly here, BHA calls itself a consultant and provides a host 17 of services to the Car Dealerships, including services related to telemarketing. But the 18 similarities with Gomez end there. Most importantly, the offending calls here were not 19 made by third-party telemarketers on BHA’s behalf: Plaintiffs allege they are former 20 customers of the Car Dealerships and the dealerships themselves placed the offending calls 21 to Plaintiffs to promote vehicles in their own inventory. (Compl. ¶¶ 36, 42–44, 53, 57–59.) 22 In short, Plaintiffs’ evidence fails to substantiate their theory that in placing the 23 offending calls to Plaintiffs, the Car Dealerships acted under BHA’s actual authority. 24 B. 25 A principal may be liable in circumstances where a purported agent acts with 26 apparent authority, even if the agent lacks actual authority. Dish Network, 28 FCC Rcd. at 27 6586. “Apparent authority is the power held by an agent or other actor to affect a principal’s 28 legal relations with third parties when a third party reasonably believes the actor has Apparent Authority -8- 1 authority to act on behalf of the principal and that belief is traceable to the principal’s 2 manifestations.” Restatement § 2.03. The Restatement suggests that the analysis should not 3 take place in a vacuum and that the third party’s observations, and the context in which 4 they are made, are key. See id. cmt. d. For example, courts have held a third party’s actual 5 knowledge that an agent in fact lacks authority to bind the principal defeats the 6 reasonableness of believing the agent to be authorized. See, e.g., A-J Marine, Inc. v. Corfu 7 Contractors, Inc., 810 F. Supp. 2d 168, 181 (D.D.C. 2011) (“In other words, the third party 8 must actually (and reasonably) believe the agent is authorized . . . .”). 9 Here, Plaintiffs point to public statements that might lead a reasonable person to 10 believe the Car Dealerships act with BHA’s authority, notwithstanding that they lack actual 11 authority from BHA. For example, the website for “Berkshire Hathaway Automotive” 12 states that it “operates” the many dealerships it owns and that its management is 13 “responsible for selecting, coaching, developing and retaining” employees and driving 14 dealerships’ sales and services performance. (Resp. Ex. A, Natalia Lyons Declaration 15 (“Lyons Dec.”), Ex. 2.) That these statements are attributed to “Berkshire Hathaway 16 Automotive,” and it is unclear whether this name refers to BHAI or BHA or the automotive 17 group generally, only underscores it might be reasonable for a third party to be confused 18 by the group’s corporate structure and misapprehend the allocation of actual authority. 19 However, Plaintiffs do not produce any competent evidence that they or any other 20 call recipient actually observed these public statements by “Berkshire Hathaway 21 Automotive,” or any other manifestations of BHA’s apparent authority over the Car 22 Dealerships. This is puzzling because Plaintiffs allege in their SAC, and reiterate in their 23 Response to BHA’s Motion to Dismiss, that they (or their spouse) contacted, or were 24 contacted by, BHA. (E.g., SAC ¶¶ 48–49, 62.) For example, Plaintiffs allege that 25 26 27 28 Plaintiff Wolski’s wife contacted Camelback Kia, BHA, and Berkshire Hathaway Automotive, Inc. by phone, email, and online demanding that the calls cease. . . . Eventually, Plaintiff Wolski’s wife received a call from a manager of BHA who apologized for the continued calls and acknowledged that the calls should not have been made because of Plaintiff Wolski’s multiple do-not-call requests. -9- 1 (SAC ¶¶ 48–49.) Such allegations, if substantiated, would appear to support Plaintiffs’ 2 apparent authority theory. Yet Plaintiffs offer no affidavit or other competent evidence to 3 substantiate them. By contrast, BHA has produced a declaration by Mr. Faye averring BHA 4 has never contacted Plaintiffs and neither Plaintiff has ever contacted BHA. (Third Faye 5 Decl. ¶ 25.) Allegations in the SAC and representations by Plaintiffs’ counsel in the 6 Response are insufficient under the test applicable to BHA’s factual attack. See Leite v. 7 Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (“When the defendant raises a factual 8 attack, the plaintiff must support her jurisdictional allegations with ‘competent proof,’ 9 under the same evidentiary standard that governs in the summary judgment context.” 10 (citation omitted)). Thus, Plaintiffs fail to create a genuine factual dispute as to whether a 11 third party held a reasonable belief the Car Dealerships were authorized to act on BHA’s 12 behalf based on BHA’s manifestations. This is fatal to Plaintiffs’ apparent authority theory. 13 C. 14 “Ratification is the affirmance of a prior act done by another, whereby the act is 15 given effect as if done by an agent acting with actual authority.” Restatement § 4.01. A 16 principal may ratify another’s act by accepting a benefit of the act with actual knowledge 17 of the material facts or with awareness “that it does not know the material facts and 18 ratif[ies] anyway. Henderson, 918 F.3d at 1073–75. Ratification may create an agency 19 relationship between an actor and a principal where none existed before. Id. However, the 20 actor must have “acted or purported to act as an agent on the person’s behalf.” Restatement 21 § 4.03. “Therefore, when an actor is not an agent and does not purport to be one, the 22 doctrine of ratification does not apply.” Kristensen v. Credit Payment Servs. Inc., 879 F.3d 23 1010, 1014 (9th Cir. 2018) (citation and quotation marks omitted). Ratification 24 Here, Plaintiffs contend BHA “remained silent and continued to accept the benefits 25 of the Dealerships’ tortious conduct despite knowing what the callers were doing or, at the 26 very least, knowing of facts that would have led a reasonable person to investigate further.” 27 (Resp. at 16–17 (quoting Henderson, 918 F.3d at 1075)) (alterations omitted). However, 28 Plaintiffs do not proffer evidence that in placing the offending calls, the Car Dealerships - 10 - 1 acted, or purported to act, as agents on BHA’s behalf. This is fatal to their ratification 2 theory. See Kristensen, 879 F.3d at 1014–15. Even if Plaintiffs could overcome this hurdle, 3 they have not proffered evidence showing that BHA actually knew the Car Dealerships 4 were placing calls on their behalf in violation of the TCPA, or that BHA “had knowledge 5 of facts that would have led a reasonable person to investigate” whether such violations of 6 the TCPA were occurring. See id. As noted, Plaintiffs’ evidence shows BHA was involved 7 in, and facilitated, the Car Dealerships’ telemarketing. Further, Plaintiffs allege in the SAC 8 that such telemarketing included unlawful calls. (E.g., ¶¶ 42–49, 58–65.) However, 9 Plaintiffs do not offer competent evidence establishing that any unlawful calls took place 10 under BHA’s watch or on its behalf, nor evidence of any other “red flags” that should have 11 alerted BHA to investigate potential violations of the TCPA. See Kristensen, 879 F.3d at 12 1015. Thus, Plaintiffs cannot succeed on a ratification theory based on the evidence they 13 have proffered. 14 IV. CONCLUSION 15 Having reviewed the evidence produced by both parties with the aid of jurisdictional 16 discovery, the Court finds Plaintiffs have failed to create a material factual dispute as to 17 whether BHA is vicariously liable under the TCPA for the unlawful phone calls allegedly 18 made by the Car Dealerships to Plaintiffs, their former customers. Plaintiffs therefore have 19 not met their burden to produce evidence establishing their standing to assert a TCPA claim 20 against BHA, depriving this Court of subject-matter jurisdiction over the same. 21 IT IS THEREFORE ORDERED granting Defendant BHA’s Motion to Dismiss 22 Plaintiffs’ Second Amended Complaint (Doc. 55) as to the claim asserted against it. The 23 claim against Defendant BHA is dismissed for lack of jurisdiction. Plaintiffs’ claim against 24 Defendants Chvt Motors, LLC and Showcase Motors, LLC will proceed. The Court will 25 set a telephonic scheduling conference by separate Order. 26 Dated this 29th day of March, 2023. 27 28 Honorable John J. Tuchi United States District Judge - 11 -
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