Stark et al v. Stall, No. 3:2019cv00366 - Document 14 (S.D. Cal. 2019)

Court Description: ORDER granting Defendant's Motion to Dismiss (Doc. No. 7 ). Signed by Judge Anthony J. Battaglia on 8/7/2019. The Court orders the following items stricken: Doc. No. 10 Exhibit A; Doc. No. 10 at page 4, lines 714, and the accompanying footnot e; Doc. No. 10 at page 4, lines 2428, to page 5, lines 16; and Doc. No. 10 at page 5, lines 1016. The Court also dismisses Plaintiff Stark from the case for failure to show standing. The Court grants Plaintiff leave to amend. Plaintiffs Second Amended Complaint is due by 8/31/2019. (All non-registered users served via U.S. Mail Service)(jrm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 COLLETTE STARK, ANTON EWING 12 Plaintiffs, 13 v. 14 STUART STALL, 15 Case No.: 19-CV-00366-AJB-NLS ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (Doc. No. 7) Defendant. 16 17 Before the Court is Defendant Stuart Stall’s motion to dismiss Plaintiff Collette Stark 18 and Plaintiff Anton Ewing’s First Amended Complaint, (Doc. No. 6), under Rule 12(b)(6) 19 of the Federal Rules of Civil Procedure. (Doc. No. 7.) For the reasons set forth below, the 20 Court GRANTS Defendant’s motion to dismiss. 21 I. BACKGROUND 22 The following facts are taken from the Complaint and attached exhibits. They are 23 construed as true for the limited purpose of resolving the instant motion. See Brown v. Elec. 24 Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013). 25 Plaintiff alleges that during the period of December 2018 to February 2019, he 26 received a series of unwanted phone calls from the phone number (844) 853-7355. 27 (Doc. No. 6 at 7:14–16.) Approximately nine phone calls were received by Plaintiff on 28 1 19-CV-00366-AJB-NLS 1 various phone lines controlled by Plaintiff Ewing.1 (Id.) Some of the phone calls began 2 “with a prerecorded message that stated ‘Hello, this is US Global Real Estate . . .’” followed 3 by a live representative. (Id. at 7:18–19.) “Most of these robocalls used a prerecorded or 4 artificial voice, while the rest were marked by an unnatural click or pause at the beginning.” 5 (Id. at 29:10–11.) Plaintiff alleges that the purpose of these calls was to set real estate 6 appointments. (Id. at 2:11–12.) Plaintiff also alleges that these same calls were intended to 7 advertise carpet cleaning services. (Id. at 28:21.) Either way, Plaintiff maintains that he has 8 never heard of the parties that called him or consented to their calls. (Id. at 28:22–23.) 9 Attached to Plaintiff’s initial complaint is a copy of an email 2 from Defendant Stall 10 to Stark dated February 22, 2019, in which Defendant writes, “My Global partner set an 11 appointment for us on Saturday at 11:00.” (Doc. No. 1 at 34.) Defendant further advises 12 details of when he will arrive at Stark’s address and that he is “working on data for [Plaintiff 13 Stark] right now.” (Id.) The copy of the email indicates that it was forwarded to Ewing. 14 (Id.) No context for the message or explanation as to how Defendant received Stark’s 15 information is included. The Complaint alleges that Defendant appeared at Ewing’s home 16 in early February 2019, and at Stark’s home on February 23, 2019. (Doc. No. 6 at 2:27– 17 3:4.) 18 On February 22, 2019, Plaintiffs filed their initial complaint with the Court. 19 (Doc. No. 1 at 1.) On March 20, 2019, Plaintiffs filed a first amended complaint “as of 20 right,” pursuant to Fed. R. Civ. P. 15. (Doc. No. 6 at 1–2:2.) The Complaint alleges three 21 causes of action under 47 U.S.C. § 227, which is also known as the Telephone Consumer 22 Protection Act (“TCPA”). (See Doc. No. 6.) Defendant filed the instant motion to dismiss 23 24 25 26 27 28 1 The called phone numbers assigned to Plaintiff Ewing are (619) 719-9640, (619) 7982016, and (619) 888-1296. (Doc. No. 6 at 28:5–12.) 2 In light of Plaintiffs’ pro se status, the Court has liberally construed the pleadings and looked to the exhibits provided to decipher the claim and factual background. See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (pro se pleadings are liberally construed). 2 19-CV-00366-AJB-NLS 1 on April 3, 2019. (Doc. No. 7.) 2 II. LEGAL STANDARDS 3 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 4 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss 5 a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient 6 facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 7 88 F.3d 780, 783 (9th Cir. 1996) (citation and internal quotation marks omitted). However, 8 a complaint will survive a motion to dismiss if it contains “enough facts to state a claim to 9 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 10 In making this determination, a court reviews the contents of the complaint, accepting all 11 factual allegations as true and drawing all reasonable inferences in favor of the nonmoving 12 party. See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 13 975 (9th Cir. 2007). 14 Notwithstanding this deference, the reviewing court need not accept legal 15 conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 16 a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” 17 Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 18 526 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should 19 assume their veracity and then determine whether they plausibly give rise to an entitlement 20 to relief.” Iqbal, 556 U.S. at 679. 21 Pro se pleadings are held to “less stringent standards than formal pleadings drafted 22 by lawyers” because pro se litigants are more prone to making errors in pleading than 23 litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations 24 omitted); see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute 25 on other grounds, Lopez, 203 F.3d at 1126–30 (9th Cir. 2000). Thus, the Supreme Court 26 has held that federal courts should liberally construe the “‘inartful pleading’ of pro se 27 litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v. 28 MacDougall, 454 U.S. 364, 365 (1982)). However, pro se plaintiffs are expected to follow 3 19-CV-00366-AJB-NLS 1 “the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 2 (9th Cir. 1987); see Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); see also Jourdan v. 3 Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (“[W]hile pro se litigants may be entitled to some 4 latitude when dealing with sophisticated legal issues, acknowledging their lack of formal 5 training, there is no cause for extending this margin to straightforward procedural 6 requirements that a layperson can comprehend as easily as a lawyer.”). Thus, failure to 7 meet procedural requirements will receive less latitude. 8 III. DISCUSSION 9 Defendant requests dismissal of Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 10 12(b)(6). The Court also raises, sua sponte, several issues regarding the Complaint. The 11 Court discusses each in turn below. 12 A. 13 To sue in federal court, a plaintiff must establish standing under the “case or 14 controversy” requirement under Article III of the U.S. Constitution. Sec. & Exch. Comm’n 15 v. Med. Comm. for Human Rights, 404 U.S. 403, 407 (1972). Standing is an essential 16 element of a federal court’s subject matter jurisdiction. City of S. Lake Tahoe v. California 17 Tahoe Reg’l Planning Agency, 625 F.2d 231, 233 (9th Cir. 1980). Three elements must be 18 satisfied for a plaintiff to have standing under Article III: “(1) he or she has suffered an 19 injury in fact that is concrete and particularized, and actual or imminent; (2) the injury is 20 fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a 21 favorable court decision.” Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 22 1220, 1225 (9th Cir. 2008) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). 23 Because Article III standing is a threshold jurisdictional requirement that can be raised at 24 any time during a suit, any jurisdictional issues must be settled prior to the court 25 considering the merits of any case. Villegas v. United States, 963 F. Supp. 2d 1145, 1153 26 (E.D. Wash. 2013). Standing as to Stark 27 Plaintiffs’ Complaint almost entirely focuses on alleged wrongful telephone calls 28 placed to Ewing. Stark’s name is only mentioned in conjunction with Ewing. No specific 4 19-CV-00366-AJB-NLS 1 factual allegations are made as to any phone number that is owned by Stark. Further, no 2 mention is made of Stark ever answering any specific phone call whatsoever. The only 3 factual allegations relating to Stark are that she communicated with Defendant via email 4 and in person. (Doc. No. 6 at 3:4–5.) The fact that Stark interacted with Defendant is 5 insufficient to constitute an injury in fact under of the causes of action in the Complaint. 6 As such, Stark is DISMISSED from the Complaint based on her lack of standing. The 7 remainder of this order will analyze the Complaint as it pertains to Ewing. 8 B. 9 Under Federal Rule of Civil Procedure 12(f), on its own or by motion, the Court 10 “may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous 11 matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is to “avoid the expenditure of 12 time and money that must arise from litigating spurious issues by dispensing with those 13 issues prior to trial . . . .” Sidney—Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 14 1983). The Court must view the pleadings “in the light most favorable to the non-moving 15 party.” Cal. Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 16 1033 (C.D. Cal. 2002). Striking Portions of the Complaint 17 Plaintiff’s response to the instant motion to dismiss includes, as “Exhibit A,” a 18 second amended complaint. (Doc. No. 10 at 12–46.) Plaintiff’s understanding of Fed. R. 19 Civ. P. 15 is demonstrated in the opening of his Complaint when he states that the first 20 amended complaint was filed within 21 days as of right. (Doc. No. 6 at 1:25–2:2.) Fed. R. 21 Civ. P. 15 states that “[a] party may amend its pleading once as a matter of course . . . .” It 22 goes on to dictate that “[i]n all other cases, a party may amend its pleading only with the 23 opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Plaintiff 24 has not sought Defendant’s written consent or the Court’s leave to file his second amended 25 complaint. It is also improper and impractical to interject an amended complaint into a 26 response to a motion to dismiss. This improper procedural move creates unfair confusion 27 for all entities involved. 28 Further, Exhibit A adds no information to the Complaint that affects the Court’s 5 19-CV-00366-AJB-NLS 1 analysis regarding Defendant’s motion to dismiss. What it does add are allegations of rude 2 communications made by Defendant to Plaintiff. If considered to be true for purposes of 3 this motion, Plaintiff’s allegations may constitute a violation of the local rules. See CivLR 4 83.4.a.1.a. However, a complaint is not a proper pleading for Plaintiff to address this issue. 5 Rudeness between the parties outside of the pleadings is not pertinent to the issue of 6 whether the Complaint states a claim upon which relief can be granted. As such, Exhibit A 7 in Plaintiff’s response is STRICKEN from the pleadings. 8 Turning to the body of Plaintiff’s response, (Doc. No. 10), lines seven through 14 9 on page four allege that Defendant made a derogatory remark about Plaintiff in the motion 10 to dismiss in violation of Civil Local Rule 83.4. Plaintiff cites to Defendant’s statement 11 that Plaintiff Ewing is “. . . a serial pro se litigator who has been deemed a vexatious litigant 12 by the Superior Court of California . . . .” (Doc. No. 7-1 at 2.) Plaintiff’s name does, in fact, 13 appear on California’s Vexatious Litigant List. Vexatious Litigant List, Judicial Council of 14 California, http://www.courts.ca.gov/documents/vexlit.pdf (last visited August 2, 2019). 15 Plaintiff cannot claim that any time someone refers to his published status within another 16 court system, they have made a derogatory remark in violation of the local rules. Lines 17 seven through 14 on page four and the associated footnote are hereby STRICKEN from 18 the pleadings as immaterial, impertinent, and scandalous matter. (See Doc. No. 10 at 4:7– 19 14, and footnote.) 20 Page four line 24 through page five line six of the response, (Doc. No. 10 at 4:24– 21 5:6), discuss a “settlement offer” made by Defendant. The question of whether a federal, 22 common law settlement privilege exists has yet to be decided by the United States Court 23 of Appeals for the Ninth Circuit. The Sixth Circuit has, however, recognized a settlement 24 privilege. Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980 25 (6th Cir. 2003). Their reasoning for the privilege is, in part, as follows: 26 27 28 There exists a strong public interest in favor of secrecy of matters discussed by parties during settlement negotiations. This is true whether settlement negotiations are done under the auspices of the court or informally between the parties. The ability to negotiate and settle a case without trial fosters a 6 19-CV-00366-AJB-NLS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 more efficient, more cost-effective, and significantly less burdened judicial system. In order for settlement talks to be effective, parties must feel uninhibited in their communications. Id. Federal Rule of Evidence 408 dictates that an offer of consideration in exchange for compromise of a claim is not ultimately admissible to prove the validity of a claim. The local rules also require that parties “[a]ttempt to informally resolve disputes with opposing counsel.” CivLR 83.4.a.1.d. The Court will not reach the question of whether the settlement offer made by Defendant to Plaintiff is privileged. The Court discusses the policy behind treatment of settlement communications to inform on the question of whether Defendant’s offer is pertinent to Plaintiff’s claim. The Court finds that it is not. The statements outlined by Plaintiff do not show culpability on Defendant’s part, but rather a simple offer of information in exchange for resolution of the claim. (Doc. No. 10 at 4:24–5:6.) Finding it to be impertinent to the case, the Court STRIKES page four line 24 through page five line six of Plaintiff’s response, (Doc. No. 10). In the argument section of his response to Defendant’s motion to dismiss, Plaintiff states the following: Defendant argues at Page ID.111, lines 12-13, that “Ewing has not alleged any facts showing that Defendant employed or controlled any third-party callers, so there can be no vicarious liability.” That statement by Stall is a bold-face lie. The motion should be denied on this basis alone. It is sickening that Stall can actually make this statement to the Court and not be sanctioned. (Doc. No. 10 at 5:10–16.) Plaintiff has been placed on notice of the local rules on professionalism and their applicability to him by this Court in the past. See Ewing v. Flora, No. 14cv2925 AJB (NLS), 2015 U.S. Dist. LEXIS 194169, at *23 (S.D. Cal. Mar. 25, 2015). The local rules require that attorneys “[b]e courteous and civil in all communications, oral and written, and in all proceedings conduct herself/himself with dignity and respect.” CivLR 83.4.a.1.a. Defendant’s statement is a legal argument and not 28 7 19-CV-00366-AJB-NLS 1 a “bold-face lie” deserving of sanctions as Plaintiff asserts.3 Finding it to be impertinent to 2 the case and scandalous, the Court STRIKES the above-cited portion of Plaintiff’s 3 response. 4 All parties are hereby reminded of the local rules requiring courtesy and civility in 5 all communications, oral and written. If either party feels that they must seek the 6 intervention of the Court to address impropriety, they should do so through the proper 7 procedures. 8 C. 9 Federal Rule of Civil Procedure 19(a)(1) provides that persons are required to be 10 joined, where feasible, if in that person’s absence, the court cannot accord complete relief 11 among existing parties. The Rule further provides that a party must be joined where 12 disposing of the action in the person’s absence may impair the person’s ability to protect 13 their interest. Fed. R. Civ. Pro. 19(a)(1)(B)(i). “The absence of ‘necessary’ parties may be 14 raised by reviewing courts sua sponte.” CP Nat’l Corp. v. Bonneville Power Admin., 928 15 F.2d 905, 911 (9th Cir. 1991) (citations omitted). Failure to Join an Indispensable Party 16 Here, Plaintiff pleads facts about a company identified as “US Global,” which was 17 hired by Defendant and is the entity that actually placed the telephone calls. Plaintiff also 18 refers to multiple defendants at times throughout the Complaint but only formally names 19 Defendant Stall in this case. Plaintiff did, however, include what appears to be a print-out 20 of a website listing that contains contact information for “U.S. Global Marketing and 21 Listing Service” as Exhibit E to his initial complaint. (Doc. No. 1 at 43–44.) 22 The Court cannot accord complete relief without US Global as a named party to this 23 case. Proceeding without US Global would also impede their ability to protect their interest 24 in the outcome of this case. Resolution of this case in favor of Plaintiff would require 25 findings that US Global’s actions were unlawful. Further, a finding that Defendant Stall 26 acted unlawfully would only be binding on Defendant and would not grant the complete 27 28 3 The Court discusses the merit of this argument below at section D. 8 19-CV-00366-AJB-NLS 1 relief that Plaintiff seeks. As such, US Global, and not solely Defendant Stall, must be 2 provided with notice of the action and an opportunity to respond. 3 D. 4 Plaintiff alleges that the relationship between Defendant and US Global is such that 5 Defendant is liable for violations of the TCPA committed by US Global. “[T]he TCPA 6 imposes vicarious liability where an agency relationship, as defined by federal common 7 law, is established between the defendant and a third-party caller.” Gomez v. Campbell- 8 Ewald Co., 768 F.3d 871, 877 (9th Cir. 2014). The Ninth Circuit has described the requisite 9 relationship as follows: 10 11 12 13 14 15 Agency Theory “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third) Of Agency § 1.01 (Am. Law Inst. 2006). For an agency relationship to exist, an agent must have authority to act on behalf of the principal and “[t]he person represented [must have] a right to control the actions of the agent.” Restatement (Third) Of Agency § 1.01, cmt. c (Am. Law Inst. 2006). 16 Mavrix Photographs, Ltd. Liab. Co. v. LiveJournal, Inc., 873 F.3d 1045, 1054 (9th Cir. 17 2017). 18 Plaintiff’s FAC lacks the factual allegations that would be required to establish an 19 agency relationship between Defendant and US Global. Setting aside the numerous 20 conclusory statements that Plaintiff makes, few factual allegations remain as to the nature 21 of the relationship. Plaintiff alleges that “Stall hired and paid a company by the name of 22 US Global to set real estate appointments for Stall[,]” and that “Stall paid US Global $3,900 23 plus 20% of his real estate broker commissions for 60 leads (appointments) per year.” 24 (Doc. No. 6 at 2:11–16.) Plaintiff then goes on to make several legal conclusions including 25 that “Stall knows that US Global engages in telemarketing to obtain real estate leads for 26 Stall.” (Id. at 2:17–18.) 27 The Court need not accept legal conclusions as true. See Iqbal, 556 U.S. at 678. The 28 Court, further, cannot assume Plaintiff can prove facts that he has failed to allege. See 9 19-CV-00366-AJB-NLS 1 Assoc. Gen. Contractors, 459 U.S. at 526. Item E in the FAC, (Id. at 2:22–23), illustrates 2 the issue of deciphering between legal conclusions and factual allegations. Plaintiff states 3 that “Stall is vicariously liable for the illegal acts of the agents he knowingly hired and paid 4 to make illegal calls in violation of the TCPA.” (Id.) This is a clear legal conclusion. The 5 FAC is devoid of facts that would properly allege that Defendant directed and had the 6 power to compel US Global to make telephone calls on his behalf that violate the TCPA. 7 The facts, as they stand, only allege that Defendant paid US Global to set real estate 8 appointments for him.4 (Id. at 2:11–12.) The facts, as opposed to the conclusions, do not 9 show that Defendant is empowering US Global to violate the TCPA in order to acquire the 10 appointments. 11 Plaintiff also alleges, for example, that “Stall controlled US Global by requiring 12 them to give Stall real estate lead within zip code 92110 . . .” and that “Stall required US 13 Global to ask specific questions on each telemarketing call.” (Id. at 4:27–5:5.) While these 14 allegations are vague, if taken as fact they only show that Defendant was able to have some 15 control over the types of appointments that US Global was setting for him. The allegations 16 do not show that Defendant had any control over how US Global initially acquired the 17 leads. 18 Contrary to Plaintiff’s conclusion that the courts “have held that Stall is vicariously 19 liable for the acts of US Global in TCPA matters[,]” (Id. at 3:8–11) the law establishes that 20 a principal can be liable for the actions of their agent where an agency relationship exists 21 according to the federal common law. Gomez, 768 F.3d at 877. Here, Plaintiff has not 22 alleged sufficient facts to establish a plausible claim that there is a common-law agency 23 relationship between Defendant and US Global. Therefore, for this reason as well as the 24 reasons previously analyzed by the Court, Defendant’s motion to dismiss is GRANTED. 25 26 27 28 Plaintiff also states that US Global is advertising Defendant’s carpet cleaning services. The Court remains unclear on whether it is alleged that Defendant is a real estate agent, a carpet cleaner, or both. 4 10 19-CV-00366-AJB-NLS 1 IV. LEAVE TO AMEND 2 Federal Rule of Civil Procedure 15(a) guides the Court to grant leave to amend freely 3 when justice so requires. While Plaintiff Ewing falls outside of the policy justifications for 4 granting leniency to pro se plaintiffs, the current state of the law in the Ninth Circuit also 5 guides the Court to grant leave to amend. See Jourdan, 951 F.2d at 109. However, if 6 Plaintiff elects to file a second amended complaint, he must comply with the local rules, 7 the Federal Rules of Civil Procedure, and the analysis set out in this order. 8 Plaintiff is specifically, but not exclusively, reminded that Rule 8 of the Federal 9 Rules of Civil Procedure states that a pleading must contain “a short and plain statement 10 of the claim showing that the pleader is entitled to relief.” It is well settled that dismissal 11 is proper where a complaint is “argumentative, prolix, replete with redundancy, and largely 12 irrelevant[,]” McHenry v. Renne, 84 F.3d 1172, 1177–80 (9th Cir. 1996), or where filings 13 are confusing, conclusory, and unnecessarily voluminous. Hatch v. Reliance Ins. Co., 758 14 F.2d 409, 415 (9th Cir. 1985). The 41 pages of Plaintiff’s FAC are redundant, conclusory, 15 unnecessarily voluminous, and highly confusing. While the Court has declined to dismiss 16 Plaintiff’s Complaint on these grounds at this stage, any amended complaint filed by 17 Plaintiff must comply with Rule 8’s “short and plain statement” clause and the cited 18 caselaw. 19 Subject to the requirements set out in this order and special requirements that have 20 been put in place for Plaintiff Ewing in the Southern District,5 the Court GRANTS Plaintiff 21 leave to amend. 22 V. 23 24 CONCLUSION For the reasons stated above, the Court ORDERS the Court Clerk to strike the following: 25 26 27 28 5 Beginning May 29, 2019, for a period of 36 months, Plaintiff Ewing is required to file a copy of the order issued by Judge Burns in Ewing v. Oasis Media, LLC with any new pleading filed in the Southern District. Ewing v. Oasis Media, LLC, No. 18cv1455-LAB (JLB), 2019 U.S. Dist. LEXIS 90887 (S.D. Cal. May 29, 2019). 11 19-CV-00366-AJB-NLS 1 • Doc. No. 10 – Exhibit A; 2 • Doc. No. 10 at page 4, lines 7–14, and the accompanying footnote; 3 • Doc. No. 10 at page 4, lines 24–28, to page 5, lines 1–6; and 4 • Doc. No. 10 at page 5, lines 10–16. 5 The Court also DISMISSES Plaintiff Stark from the case for failure to show 6 standing. The Court GRANTS Defendant’s motion to dismiss finding he fails to add an 7 indispensable party and fails to allege an agency relationship between Defendant and US 8 Global. (Doc. No. 7.) Finally, the Court GRANTS Plaintiff leave to amend as instructed 9 in this Order. Plaintiff’s Second Amended Complaint is due by August 31, 2019. 10 11 IT IS SO ORDERED. Dated: August 7, 2019 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 19-CV-00366-AJB-NLS

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