Usanovic v. Americana, L.L.C.

• Court: District Court, D. Nevada
• Decided: May 28, 2024
• Docket: 2:23-cv-01289
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 KELLY USANOVIC, individually and on Case No. 2:23-cv-01289-RFB-EJY 8 behalf of all others similarly situated, ORDER 9 Plaintiff,

10 v.

11 AMERICANA, LLC, a Nevada company,

12 Defendant.

13 14 I. INTRODUCTION 15 Before the Court for consideration is the Report and Recommendation (ECF No. 54) of the 16 Honorable Elayna J. Youchah, United States Magistrate Judge, entered on April 24, 2024. 17 II. BACKGROUND 18 Plaintiff commenced this putative class action against Defendant Americana L.L.C. by 19 filing a Complaint (“Original Complaint”) on August 18, 2023. ECF No. 1. In the Original 20 Complaint, Plaintiff brought two claims for violation of the Telephone Consumer Protection Act 21 (“TCPA”) on behalf of herself and two separately defined classes, the “Do Not Call Registry 22 Class” and “Internal Do Not Call Class.” On October 6, 2023, Defendant filed a motion to dismiss 23 and motion to strike the class allegations within the Original Complaint. ECF Nos. 12, 13. On 24 October 30, 2023, Plaintiff filed her First Amended Complaint (“FAC”). Defendant again moved 25 to dismiss and strike the class allegations in the FAC. ECF Nos. 26, 28. Subsequently, Plaintiff 26 voluntarily dismissed her claim on behalf of the “Internal Do Not Call Class” without prejudice. 27 ECF No. 34. On November 28, 2023, discovery was stayed pending the resolution of the motions 28 to dismiss and motions to strike class allegations. ECF No. 33. Plaintiff sought to amend her FAC 1 on February 12, 2024. ECF No. 42. On April 24, 2024, the Honorable Elayna J. Youchah, United 2 States Magistrate Judge, issued an Order and Report and Recommendation. ECF No. 54. Judge 3 Youchah granted Plaintiff’s motion to amend in part, allowing Plaintiff to file a Second Amended 4 Complaint that included her reasserted “Do Not Call Registry Class” and new “Pre-Recorded No 5 Consent Class” claims. However, Judge Youchah denied the motion to amend as it related to 6 Plaintiff’s reasserted “Internal Do Not Call Class.” Judge Youchah further recommended that 7 Plaintiff’s “Internal Do Not Call Class” claim not be permitted to proceed as Plaintiff had 8 previously voluntarily dismissed this claim and provided no explanation for its reassertion in the 9 SAC. Objections to the Report and Recommendation were due on May 8, 2024. No party objected. 10 On May 9, 2024, Plaintiff filed her Second Amended Complaint (“SAC”) which only includes 11 claims on behalf of the “Do Not Call Registry Class” and “Pre-Recorded No Consent Class.” 12 Defendant filed its responsive pleadings, including a motion to dismiss and motion to strike the 13 class allegations from the SAC on May 15, 2024. ECF Nos. 60, 61. 14 III. DISCUSSION 15 A district court “may accept, reject, or modify, in whole or in part, the findings or 16 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). A party may file specific 17 written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. § 18 636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is 19 required to “make a de novo determination of those portions of the report or specified proposed 20 findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Local 21 Rule IB 3-2(b). Where a party fails to object, however, a district court is not required to conduct 22 “any review,” de novo or otherwise, of the report and recommendations of a magistrate judge. 23 Thomas v. Arn, 474 U.S. 140, 149 (1985). Pursuant to Local Rule IB 3-2(a), objections were due 24 by May 8, 2024. No objections have been filed. 25 The Court nonetheless has conducted a de novo review. The Court concurs with the 26 Magistrate Judge and denies Plaintiff’s motion to amend as it relates to the “Internal Do Not Call 27 Class” and thus this claim shall not proceed at this time. Plaintiff has consented to this denial in 28 light of her failure to provide an explanation in either her opening or reply brief as to why she was reasserting this claim that she had previously voluntarily dismissed. See LCR 47-3; Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990) (denial of leave to amend appropriate where 3 plaintiff “provided no satisfactory explanation for his failure to fully develop his contentions originally.”) (internal quotation marks and citations omitted). ° However, the Court writes to clarify that this Order has no effect on Plaintiff's voluntary 6 dismissal of the claim without prejudice. In other words, the Court declines to bar the “Internal Do Not Call Class” from being permitted to proceed under any circumstances at any future point in 8 the litigation. When Plaintiff voluntarily dismissed the Internal Do Not Call Class, she did so 7 without prejudice and discovery against Defendant has been stayed since November 2023. Thus, 10 the Court cannot say at this early stage of the litigation that Plaintiff's complaint could not possibly be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“Because the district court did not determine, nor can we conclude, that the allegation of other IS facts could not possibly cure the deficiencies in [Doe's] complaint, the district court abused its 4 discretion in dismissing [the complaint] with prejudice.”) (quoting Schreiber Distrib. Co. v. Serv- Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). '6 IV. CONCLUSION IT IS THEREFORE ORDERED that the Report and Recommendation (ECF No. 54) is 18 ACCEPTED and ADOPTED in full. 9? IT IS FURTHER ORDERED that Plaintiff's Motion to Amend is DENIED as to the 20 previously dismissed Internal Do Not Call Class. The denial of motion is without prejudice. 21 In light of Plaintiff's filing of the Second Amended Complaint, IT IS FURTHER 22 ORDERED that Defendant’s motion to dismiss and motion to strike class allegations from the Original Complaint (ECF Nos. 12, 13) and motions to dismiss and strike class allegations from the “4 First Amended Complaint (ECF Nos. 26, 28) are all DENIED without prejudice as moot. DATED: May 28, 2024. 26 > ar RICHARD F. BOULWARE, II 28 UNITED STATES DISTRICT JUDGE

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