Evans v. Arizona Cardinals Football Club, LLC

252 F. Supp. 3d 855, 2017 WL 2118316, 2017 U.S. Dist. LEXIS 74536
District Court, N.D. California·Decided May 15, 2017·No. No. C 16-01030 WHA·Published·Cited by 1 cases

Opinion

ORDER GRANTING MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

William Alsup, United States District Judge

INTRODUCTION

Defendants in this putative class action move to dismiss most claims in the second [857]*857amended complaint and for summary judgment as to most claims surviving dismissal. The motion is Granted.

STATEMENT

This is an action against the 32 member clubs of the National Football League by twelve retired NFL players and the estate of a thirteenth. The roster of plaintiffs and array of asserted claims have been refined through both amendments and motion practice. Although we remain at the pleading stage, substantial discovery has already been taken. The procedural history of this litigation and plaintiffs’ sweeping background allegations about the NFL as a whole that have featured in each iteration of their complaint have been set forth in detail in prior orders (see Dkt. Nos. 168 at 1-3; 175 at 1-3) and need not be repeated here. Recent events directly informing the instant motion, however, merit brief summary.

On November 30, 2016, plaintiffs filed their first amended complaint, which totaled approximately one hundred pages and asserted RICO and conspiracy claims in addition to claims for intentional misrepresentation and concealment (Dkt. No. 136). The clubs moved to dismiss (Dkt. No. 139). On February 3, 2017, a prior order granted the motion in part. That order dismissed all RICO and conspiracy claims without leave to amend (see also Dkt. No. 175) and dismissed the intentional misrepresentation and concealment claims as to all but eight clubs with leave to amend (Dkt. No. 168 at 19-20). The order emphasized that “a defendant club should only have to defend against claims pled properly against it. That the amended complaint is adequate as to some clubs does not somehow make it adequate as to all clubs” (id. at 17). The order also made clear— citing plaintiffs’ counsel’s statement that they could “amend [the complaint] to any degree of particularity” required (Dkt. No. 169 at 40:6-40:7) — that “this [would] be plaintiffs’ last opportunity to amend, so they should plead their best case in all respects” (Dkt. No. 168 at 19-20).

Plaintiffs then filed their second amended complaint, which exceeds its predecessor in length and asserts claims only for intentional misrepresentation and concealment (Dkt. No. 189). The clubs move to dismiss most claims and for summary judgment as to most claims that survive dismissal (Dkt. No. 212). This order follows full briefing and oral argument.

ANALYSIS

1. Extraneous Allegations.

As a preliminary matter, by a conservative estimate, over half of the second amended complaint consists of allegations inapposite to plaintiffs’ actual claims for relief. Much of the second amended complaint is dedicated to essentially repeating the same sweeping criticisms and accusations, directed against the NFL as a whole, that permeated plaintiffs’ prior pleadings. The critical section of the second amended complaint setting forth particularized allegations concerning individual players and clubs consists of less than 50 pages.

Even within that section, only a fraction of the allegations actually pertain to plaintiffs; the rest concern putative class members. But as the undersigned judge has repeatedly noted, this is not yet a class action (e.g., Dkt. No. 169 at 26:23-27:2). And as a recent order ruled, plaintiffs do not have leave to patch up weaknesses in their pleadings by expanding their numbers at this stage (see Dkt. No. 175). Nor can they shore up their own claims for relief against the individual clubs they played for by piling on allegations as to other putative class members. It is important at the outset to determine whether the named plaintiffs can state claims for [858]*858relief before deciding whether or not they can represent a class, ■ •

Additionally, the second amended complaint is replete with extensive and incendiary allegations of conspiracy and general illegality {e.g., that the NFL’s handling and distribution of medication violated the Controlled. Substances Act and the Food,, Drug, and Cosmetic Act), openly flouting the parameters set by the February 3 order. Indeed, the second amended complaint’s very first paragraph states, “Plaintiffs bring this action for redress of injuries resulting from a conspiracy perpetrated by the 32 defendant clubs ,., that comprise the National Football League” (Dkt. No. 189 at 1 (emphasis added)). To repeat, plaintiffs do not have leave to re-plead any conspiracy claims (sée Dkt. Nos. 168, 175). The only claims for relief asserted here are for intentional misrepresentation and concealment by individual clubs.

This order recognizes, the possibility that plaintiffs made the deliberate choice to proceed this way. The second amended complaint makes this notable comment (Dkt. No. 189 at 4):

8. Plaintiffs agree, and commit now (they would contend they have already done so) to working with the Clubs on this problem [of painkiller abuse in the NFL], In any event, this should be considered a standing invitation to do so.
9. But until Plaintiffs get that call, all they can do (if they are to do anything at all) is proceed "With their well-pled allegations that Defendants’ actions violate the Controlled Substances Act (“CSA”) and/or Food Drug & Cosmetic' Act (“FDCA”) ... them implementing regulations, and analogous state laws and that their omissions and concealment as detailed herein harmed Plaintiffs and the proposed class.

So perhaps the bloat of inapposite allegations is the product of some advocacy-based agenda rather than any attempt !to comply with pleading requirements. For present purposes, however, this order makes clear at the outset that what matters is not whether plaintiffs have drawn attention to widespread misconduct in the NFL but whether each plaintiff has properly pled claims for relief against each individual club and, if so, whether those claims survive summary judgment. Accordingly, allegations not directed to the issues at hand, no matter how extensive, will not be considered.

Having established the foregoing, this order turns to the merits of the clubs’ motion.

2. Motion to Dismiss.

A. Legal Framework.

As before, .there is. no dispute that plaintiffs’ claims sound in fraud, so Rule 9(b) applies and requires plaintiffs to “state with particularity the circumstances constituting.fraud,” although “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally,” See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009), Averments of fraud must be accompanied by “the who, what, when, where, and how” of the alleged misconduct. Ibid. This pleading standard applies to both claims of fraud based on misrepresentation and those based on nondisclosure. Id. at 1126-27.

Plaintiffs incorrectly contend Rule 9(b) “does not apply, in its full force to ,.. concealment claims” (Dkt. No. 216 at 4). Circumstances constituting fraud by omission or nondisclosure must still be pled with particularity, though they may be less specific or precise insofar as they do not involve affirmative acts. See In re Anthem, Inc.

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Evans v. Arizona Cardinals Football Club, LLC, 252 F. Supp. 3d 855, 2017 WL 2118316, 2017 U.S. Dist. LEXIS 74536 (N.D. Cal. 2017).

252 F. Supp. 3d 855 (Evans v. Arizona Cardinals Football Club, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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