Winters v. Quicken Loans Incorporated

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Richard Winters, Jr., No. CV-20-00112-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Quicken Loans Incorporated,

13 Defendant. 14 15 Plaintiff Richard Winters, Jr. (“Winters”) has filed a lawsuit against Defendant 16 Quicken Loans Incorporated (“Quicken Loans”) alleging two claims under the Telephone 17 Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. (Doc. 42.) Quicken Loans filed a 18 Motion to Dismiss Plaintiff’s Third Amended Complaint and requested oral argument. 19 (Doc. 43, the “Motion”.) The Parties have fully briefed the Motion. The Court finds that 20 oral argument will not aid the decisional process.1 The Motion is resolved as follows. 21 I. FACTUAL BACKGROUND 22 Unlike previous iterations, the Third Amended Complaint introduces a 23 “Telemarketing Agent contracted by” Quicken Loans who “contacted [Winters], via calls 24 and text messages, on his cellular telephone.” (Doc. 42 at ¶ 6.) Winters alleges “[t]he 25 Telemarketing Agent was operating pursuant to a contract between [Quicken Loans] and 26 the Telemarketing Agent to place telemarketing calls and texts on behalf of [Quicken

27 1 See, e.g., Frost v. Diocese of San Bernardino Educ. & Welfare Corp. for ben. of St. 28 Catherine of Alexandria, 302 F. App’x 729, 730 (9th Cir. 2008); see also LRCiv 7.2(f); Fed. R. Civ. P. 78(b). 1 Loans].” (Doc. 42 at ¶ 7.) Winters also alleges that “the Telemarketing Agent was to 2 place the calls using an automatic telephone dialing system or a prerecorded voice to 3 consumers in the United States, including to consumers in Arizona such as [Winters], to 4 generate leads for [Quicken Loans].” (Id. at ¶ 8.) Winters next alleges: 5 Pursuant to the contract, [Quicken Loans] maintained the 6 right to substantially control the Telemarketing Agent’s 7 actions including by specifying the nature and type of the calls to be placed, the means by which such calls were to be 8 placed, the content of such calls, and by retaining the right to 9 terminate the contract unilaterally to enforce its control over the Telemarketing Agent. 10 11 (Id. at ¶ 10.) After that, Winters alleges Quicken Loans “had actual knowledge of the 12 conduct of the Telemarketing Agent who was acting specifically pursuant to its contract 13 with [Quicken Loans] and [Quicken Loans] therefore ratified the act” and accepted the 14 benefit of the Telemarketing Agent’s actions. (Id. at ¶ 11–12.) Finally, Winters alleges 15 that Quicken Loans was “on notice that the Telemarketing Agent [was] placing calls in 16 violation of the TCPA” and that Quicken Loans did not take “steps to cease such actions 17 as permitted through its contract with the Telemarketing Agent and thus [ratified] its 18 conduct.” (Id. at ¶ 12.) 19 Around October 2018, Winters alleges “a Telemarketing Agent contracted by 20 Quicken Loans contacted [Winters], via calls and text messages, on his cellular 21 telephone . . . in an effort to sell or solicit” services by Quicken Loans. (Id. at ¶ 6.) The 22 Telemarketing Agent utilized an automatic telephone dialing system (“ATDS”) with 23 predictive capabilities in violation of federal law. (Id. at ¶ 8, 32.) Winters also alleges that 24 “[t]he Telemarketing Agent was operating pursuant to a contract between” it and Quicken 25 Loans “to place telemarketing calls and texts on behalf of” Quicken Loans. (Id. at ¶ 7; 26 see id. at ¶ 9.) Winters details one phone call on October 4, 2018, where he received a 27 call with “a pre-recorded voice on the line when [Winters] answer[ed]. [Winters] pressed 28 a number to be transferred to a live representative and [he] was transferred to a live 1 person.” (Id. at ¶ 15.) “The live representative identified themselves as ‘Quicken Loans.’ 2 [The Quicken Loans] representative then attempted to solicit [Winters] for a home loan. 3 [Winters] told [the representative] to stop calling [Winters] on this first October 4, 2018 4 phone call.” (Id. at ¶ 15.) The calls, however, continued. (Id. at ¶¶ 16, 22.) 5 Sometimes Winters was greeted with a pre-recorded voice; other times he would 6 answer, hear a click or beep, and then a live representative would answer the phone. 7 (Id. at ¶ 16.) Based on this evidence, Winters alleges the Telemarketing Agent used an 8 ATDS with predictive capabilities as defined by 47 U.S.C. § 227(a)(1). (Id. at ¶¶ 17–18.) 9 Winters alleges this is accomplished through a computer system the Telemarketing Agent 10 uses. (Id. at ¶¶ 19–20.) He also alleges the Telemarketing Agent contacted him from 11 Quicken Loans telephone numbers (Id. at ¶ 21.) In addition to phone calls, Winters 12 alleges that he received numerous text messages through an ATDS system as defined and 13 prohibited by 47 U.S.C. § 227(a)(1) and 47 U.S.C. § 227(b)(1)(A). (Id. at ¶ 32.) In the 14 Third Amended Complaint, however, Winters only identifies one specific text message 15 he received on October 5, 2018: 16 Jeremy Streicher-Martinez Mortgage Banker Call or Text 17 (480) 305-9634 Email: JeremyStreicher- 18 Martinez@quickenloans.com Fax: (844) 429-7701 NMLS: 1052442 19 20 (Id. at ¶ 31.) 21 Winters brings suit individually and on behalf of members of two proposed 22 classes, “The ATDS Call Class” and “The ATDS Call Revocation Class.”2 23 (Doc. 42 at ¶¶ 39–40; See generally, Doc. 42 at ¶¶ 38–53.) Winters defines The ATDS 24 Call class as: 25 All persons within the United States who received any 26 solicitation/telemarketing telephone calls from the 27

28 2 The Third Amended Complaint alleges Winters’ membership in three classes, but only goes on to describe two classes in any detail. (See generally, Doc. 42 at ¶¶ 38–53.) 1 Telemarketing Agent pursuant to its contract with Defendant to said person’s cellular telephone made through the use of 2 any automatic telephone dialing system or an artificial or 3 prerecorded voice and such person had not previously consented to receiving such calls within the four years prior 4 to the filing of this Complaint 5 6 (Doc. 42 at ¶ 39.) Winters defines The ATDS Call Revocation class as: 7 All persons within the United States who received any 8 solicitation/telemarketing telephone calls from the 9 Telemarketing Agent pursuant to its contract with Defendant to said person’s cellular telephone made through the use of 10 any automatic telephone dialing system or an artificial or 11 prerecorded voice and such person had revoked any prior express consent to receive such calls prior to the calls within 12 the four years prior to the filing of this Complaint. 13 14 (Doc. 42 at ¶ 40.) Winters estimates that these two classes include “thousands of 15 members.” (Doc. 42 at ¶ 44.) 16 II. STANDARD OF REVIEW 17 A complaint must contain “a short and plain statement of the claim showing that 18 the pleader is entitled to relief” such that the defendant is given “fair notice of what 19 the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 20 U.S. 545, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 21 (1957)). A complaint does not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further 22 factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 23 550 U.S. at 556). Dismissal under Rule 12(b)(6) “can be based on the lack of a 24 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 25 theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A 26 complaint, however, should not be dismissed “unless it appears beyond doubt that the 27 plaintiff can prove no set of facts in support of the claim that would entitle it to relief.” 28 Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000). 1 The Court must accept material allegations in a complaint as true and construe 2 them in the light most favorable to Plaintiffs. North Star Int’l v. Arizona Corp. Comm’n, 3 720 F.2d 578, 580 (9th Cir. 1983). “Indeed, factual challenges to a plaintiff’s complaint 4 have no bearing on the legal sufficiency of the allegations under Rule 12(b)(6).” See Lee 5 v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Review of a Rule 12(b)(6) 6 motion is “limited to the content of the complaint.” North Star Int’l, 720 F.2d at 581. 7 III. DISCUSSION 8 A private right of action exists for violations of the TCPA. 47 U.S.C. § 227(b)(3). 9 Winters alleges a negligent violation (Count 1) and a knowing or willful violation (Count 10 2) of the TCPA by Quicken Loans through the use of the Telemarketing Agent. 11 (Doc. 42 at ¶¶ 54–61.) This means Winters alleges Quicken Loans should be held 12 vicariously liable for the actions taken by the Telemarketing Agent. Thus, to survive 13 Quicken Loans’ Motion, Winters’ Third Amended Complaint must adequately allege an 14 agency relationship between Quicken Loans and the Telemarketing Agent. See Jones v. 15 Royal Admin. Servs., Inc., 887 F.3d 443, 450 (9th Cir. 2018) (“A defendant is vicariously 16 liable for violations of the TCPA where common law principles of agency would impose 17 it.”). The Court considers whether Winters has properly pleaded an agency relationship 18 between Quicken Loans and the Telemarketing Agent. It concludes Winters has not 19 pleaded sufficient facts to establish an agency relationship. 20 A. Agency 21 The Ninth Circuit relies “on the Restatement (Third) of Agency for common law 22 agency principles.” Henderson v. United Student Aid Funds, Inc., 918 F.3d 1068, 1072– 23 73 (9th Cir. 2019), as amended on denial of reh’g and reh’g en banc (May 6, 2019). 24 Thus, in the Ninth Circuit, “‘[a]gency is the fiduciary relationship that arises when one 25 person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall 26 act on the principal’s behalf and subject to the principal’s control, and the agent manifests 27 assent or otherwise consents so to act.’” Jones, 887 F.3d at 448 (quoting Mavrix 28 Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045, 1054 (9th Cir. 2017)). A key 1 principle of any agency relationship is control, especially when determining if vicarious 2 liability exists. See id. at 450 (“In determining whether vicarious liability may be 3 imposed, the ‘extent of control exercised by the [principal]’ is the ‘essential ingredient.’” 4 (quoting United States v. Bonds, 608 F.3d 495, 505 (9th Cir. 2010) (alterations in 5 original)). Without control, there is no agency relationship. See Mavrix Photographs, 6 873 F.3d at 1054 (“For an agency relationship to exist, an agent must have authority to 7 act on behalf of the principal and ‘[t]he person represented [must have] a right to control 8 the actions of the agent.’” (quoting the RESTATEMENT (THIRD) OF AGENCY §1.01, cmt. c 9 (AM. LAW INST. 2006) (alterations in original)). 10 Quicken Loans argues Winters’ allegations about the Telemarketing Agent fail the 11 standard in Iqbal and Twombly because they are “broad and conclusory” and are 12 “insufficient to state a cognizable cellphone provision claim against Quicken Loans 13 under . . . vicarious liability.” (Doc. 43 at 12.) Quicken Loans contends Winters has not 14 pleaded sufficient facts to establish the identity or existence of the Telemarketing Agent 15 (Id.) Quicken Loans also argues that the alleged facts about the contract between it and 16 the Telemarketing Agent are insufficiently pleaded. (Id. at 12–13.) Specifically, Quicken 17 Loans maintains that Winters failed to “plead any facts about the existence or the content 18 of the” contract “to allow this Court to conclude that” the existence of the contract is 19 plausible “and to allow Quicken Loans to meaningfully respond to Plaintiff’s claims.” 20 (Id.) Thus, Quicken Loans argues, it is “deprived of ‘fair notice’ of [Winters’] claims 21 required by Rule 8.” (Id. at 14.) In the event this Court does find Winters’ allegations 22 regarding the existence of the Telemarketing Agent sufficiently pleaded, Quicken Loans 23 asserts that Winters does not allege “sufficient facts to support his theory of vicarious 24 liability against Quicken Loans on the basis of calls or text messages placed by the 25 Telemarketing Agent.” (Id.) Quicken Loans argues that Winters’ facts as pleaded are 26 conclusory. (Id.) Accordingly, Quicken Loans maintains it is impossible to determine the 27 existence of any agency relationship. (Id.) 28 1 Winters argues that he has pleaded sufficient facts to support his allegations. 2 (See generally, Doc. 44 at 9–14.) Winters asserts he adequately alleges specific facts 3 which would allow him to identify the Telemarketing Agent with the support of 4 discovery. Winters also notes that the “Telemarketing Agent is the entity that placed calls 5 on behalf of [Quicken Loans] to [Winters] on October 4, 2018 as well as October 5, 8, 9, 6 10, 12, 15, 16, and 18 of 2018.” (Id. at 10.) He points to this as evidence of sufficiently 7 pleaded facts because the Telemarketing Agent “can be specifically identified from 8 [Quicken Loans’] records which will indicate where it transferred in the call from on 9 October 4, 2018 and from [Quicken Loans’] records regarding which entity it contracted 10 with to place such telemarketing calls.” (Id.) Winters also challenges Quicken Loans’ 11 argument that he has pleaded insufficient facts regarding “the existence and specific 12 contours of the contract at issue.” (Id.) For example, Winters asserts that he has pleaded 13 that the contract required the Telemarketing Agent to place “calls using a prerecorded 14 voice to consumers, including [Winters], to generate leads for [Quicken Loans];” and 15 allowed Quicken Loans to maintain “the right to substantially control the Telemarketing 16 Agent’s actions.” (Id. at 11.) Quicken Loans counters by highlighting that Winters has 17 not identified the Telemarketing Agent in the Third Amended Complaint and that 18 Winters has not attached any contract to the Third Amended Complaint. (Doc. 45 at 9.) 19 Quicken Loans argues this demonstrates that Winters’ allegations are conclusory. (Id.) 20 Finally, Winters notes that an agency relationship is sufficient to show a vicarious 21 liability under the TCPA. (Doc. 44 at 11–12.) He lists the allegations made in the 22 complaint and then asserts that, given these allegations, he sufficiently alleges facts to 23 establish either actual express agency or ratification in the Third Amended Complaint. 24 (See Id. at 13.) 25 Quicken Loans argues that Winters’ allegations of “substantial control” are merely 26 conclusory and speculative. (Doc. 45 at 9–10.) It questions how Winters is capable of 27 knowing “that the alleged contract contains terms specifying the nature, type, content, 28 frequency, and means of the calls to be placed and a unilateral termination provision” but 1 “does not know the name of the entity Quicken Loans supposedly contracted with and 2 cannot produce the contract.” (Id. at 10.) Quicken Loans asserts that Winters has either 3 failed to properly plead the evidentiary support he does have or that Winters’ arguments 4 are based on “rank speculation.” (Id.) 5 Winters’ Third Amended Complaint has not adequately pleaded an agency 6 relationship between the Telemarketing Agent and Quicken Loans because it relies on 7 conclusory allegations. The existence of a contractual relationship between the 8 Telemarketing Agent and Quicken Loans does not, in and of itself, mean that there is an 9 agency relationship between the two parties. See Abante Rooter & Plumbing v. Farmers 10 Grp., Inc., No. 17-CV-03315-PJH, 2018 WL 288055, at *5 (N.D. Cal. Jan. 4, 2018) (A 11 “court can infer that there is some relationship between” two parties, but “that inference 12 is not enough [to establish agency] because it still does not allow the court to infer that 13 defendant exercises control over the representatives.”) Winters’ allegations that the 14 Telemarketing Agent acted pursuant to a contract; that Quicken Loans directed the 15 Telemarketing Agent to place “calls using an [ATDS];” that the Telemarketing Agent 16 acted within the express authority given by Quicken Loans; that Quicken Loans 17 “substantially controlled” the Telemarketing Agent’s actions “by specifying the nature 18 and type of calls to be made, by specifying the nature and type of the calls to be placed, 19 the means by which such calls were to be placed, the content of such calls, and by 20 retaining the right to terminate the contract unilaterally;” and that the calls were “placed 21 directly pursuant to [the] contract between Defendant and the Telemarketing Agent” are 22 insufficient. (Doc. 42 at ¶¶ 7–11.) Key terms of the contract necessary to establish control 23 are missing from the Third Amended Complaint. And so, these contract allegations do 24 not establish that Quicken Loans had the requisite control over the Telemarketing Agent 25 to establish agency. Indeed, many courts have dismissed TCPA claims for similar 26 reasons.3 Having inadequately pleaded that a contract established an agency relationship,

27 3 See, e.g., Winters v. Grand Caribbean Cruises Inc., No. CV-20-00168-PHX-DWL, 28 2021 WL 3709854, at *5 (D. Ariz. Aug. 20, 2021); see id. at *5 n.2 (citing several cases). 1 Winters must rely on other theories that create an agency relationship between Quicken 2 Loans and the Telemarketing Agent. 3 One of these theories is apparent authority. Winters’ allegations do not sufficiently 4 support this theory. Winters avers that “a reasonable consumer similarly situated to 5 [Winters] would have believed that the robocall was placed by an agent of [Quicken 6 Loans] with its express authority given that the robocall was transferred to a 7 representative who identified [Quicken Loans] by name and the call was clearly made for 8 the benefit of [Quicken Loans].” (Doc. 42 at ¶ 11.) But there is no indication in the 9 Amended Compliant that Quicken Loans identified the Telemarketing Agent as a 10 Quicken Loans’ agent, commented on the Telemarketing Agent’s role or authority, even 11 mentioned the Telemarketing Agent, or made any manifestations indicating the 12 Telemarketing Agent was its agent. (See Id.) “Apparent authority holds a principal 13 accountable for the results of third-party beliefs about an actor’s authority to act as an 14 agent when the belief is reasonable and is traceable to a manifestation of the principal.” 15 RESTATEMENT (THIRD) OF AGENCY § 2.03 cmt. c (AM. LAW INST. 2006). And so, 16 manifestations by the Telemarketing Agent without manifestations by Quicken Loans 17 cannot establish apparent authority. Furthermore, the alleged transfer from the 18 Telemarketing Agent to Quicken Loans cannot establish apparent authority because 19 [A]n agent’s apparent authority originates with expressive 20 conduct by the principal toward a third party through which 21 the principal manifests assent to action by the agent with legal consequences for the principal. Apparent authority is present 22 only when a third party’s belief is traceable to manifestations 23 of the principal. The fact that one party performs a service that facilitates the other’s business does not constitute such a 24 manifestation. 25 26 Id. at § 3.03 cmt. b; see Rogers v. Postmates Inc., No. 19-CV-05619-TSH, 27 2020 WL 3869191, at *6 (N.D. Cal. July 9, 2020), appeal dismissed, No. 20-16529, 28 2021 WL 455321 (9th Cir. Jan. 15, 2021) (“Apparent authority here would need to be 1 established by alleging that Postmates said or did something upon which Rogers 2 relied. . . . Thus, the ‘principal’s manifestations’ are lacking.”); Naiman v. TranzVia LLC, 3 No. 17-CV-4813-PJH, 2017 WL 5992123, at *12 (N.D. Cal. Dec. 4, 2017) (“Plaintiff 4 alleges no facts showing that Rose reasonably believed, based on manifestations by 5 TranzVia, that he had the authority to act on behalf of TranzVia in making the calls at 6 issue.”) Therefore, Winters has not sufficiently pleaded facts to establish apparent 7 authority. 8 Another theory available to Winters is ratification. “Ratification is the affirmance 9 of a prior act done by another, whereby the act is given effect as if done by an agent 10 acting with actual authority.” RESTATEMENT (THIRD) OF AGENCY § 4.01 (AM. LAW INST. 11 2006). “A person ratifies an act by (a) manifesting assent that the act shall affect the 12 person’s legal relations, or (b) conduct that justifies a reasonable assumption that the 13 person so consents.” Id. Winters lists several allegations to support his ratification theory: 14 (1) Winters alleges that Quicken Loans had knowledge of the Telemarketing Agent’s 15 conduct pursuant to the contract between the parties and therefore ratified that conduct; 16 and (2) Winters alleges that Quicken Loans took no steps to stop the actions made by the 17 Telemarketing Agent pursuant to the contract thereby ratifying his behavior. 18 (Doc. 42 at ¶¶ 11–12.) But Winters fails to explain how Quicken Loans obtained 19 knowledge of the Telemarketing Agent’s conduct. Furthermore, the assertion that 20 Quicken Loans took no steps to stop the Telemarketing Agent lacks any factual backing. 21 Thus, both allegations are conclusory. 22 In short, Winters fails to allege sufficient facts to establish any agency relationship 23 between the Telemarketing Agent and Quicken Loans. Thus, the Court grants Quicken 24 Loans’ Motion. The Court next considers whether to grant Winters leave to amend. 25 B. Peripheral Issues 26 In addition to the Parties’ agency arguments, the Court addresses three other issues 27 the Parties raised in their briefs.4 First, Winters indicates in his response (Doc. 44) that 28 4 In the Motion, Quicken Loans also argued that this case should be dismissed under the 1 he anticipates abandoning his text message claims in light of Facebook, Inc. v. Duguid. -- 2 - U.S. ---, 141 S. Ct. 1163 (2021). (Doc. 44 at 1 n.2.) But, as Quicken Loans highlights in 3 its reply (Doc. 45), the Parties have not filed any motion or stipulation formalizing 4 Winters’ abandonment of those claims. (Doc. 45 at 1 n.1.) The text message allegations 5 remain in the Third Amended Complaint. (See generally, Doc. 42.) And so, the Court has 6 considered the TCPA claims regarding the phone calls and the text messages Winters 7 alleges in his Third Amended Complaint. 8 Second, the Parties battle over the holding and proper interpretation of the 9 Supreme Court’s decision in Duguid regarding ATDSs. (See, e.g., Doc. 43 at 7; 10 Doc. 44 at 7; Doc. 45 at 7.) This Court does not address Duguid or whether Winters 11 properly alleges facts to establish the Telemarketing Agent used an ATDS because 12 Winters’ claims against Quicken Loans ultimately fail on the threshold issue of agency. 13 Winters’ TCPA claims all rely on vicarious liability, but because Winters does not 14 sufficiently allege an agency relationship between Quicken Loans and the Telemarketing 15 Agent, Quicken Loans cannot be held vicariously liable. Thus, further discussion of his 16 TCPA claims, including a discussion of Duguid and the legal definition of an ATDS is 17 not necessary. 18 Third, Quicken Loans produced a transcript of the October 4, 2018, call and urges 19 the Court to consider it. (Doc. 32-3; Doc. 43; Doc. 45.) But the transcript is irrelevant to 20 this analysis. Winters’ allegations, which he argues establish an agency relationship, rely 21 on key facts that happened before the call transcript begins. (Doc. 44 at 6.) The transcript 22 cannot clarify whether the Telemarketing Agent was Quicken Loans’ agent. Because this 23 Order grants the Motion on the grounds that an agency relationship was inadequately 24 first-filed doctrine because another “preexisting and overlapping putative class alleged 25 in” Lopez v. Quicken Loans Inc., No. 2:19-CV-13340 (E.D. Mich. Nov. 12, 2019) 26 existed. (Doc. 43 at 16–17.) But in its reply, Quick Loans withdrew this argument because it anticipated that Lopez would be dismissed, mooting the first-to-file argument it 27 made in the Motion. (Doc. 45 at 1 n.1.) Since then, Lopez was dismissed. The Court 28 accepts Quicken Loans’ withdrawal of its first-to-file arguments. (Lopez, No. 2:19-CV- 13340, Order of Dismissal, ECF No. 33.) 1 pleaded, the Court need not discuss whether it can consider the irrelevant transcript when 2 deciding the Motion. 3 C. Leave to Amend 4 Federal Rule of Civil Procedure 15(a) provides that leave to amend should be 5 freely granted “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “The power to grant 6 leave to amend . . . is entrusted to the discretion of the district court, which ‘determines 7 the propriety of a motion to amend by ascertaining the presence of any of four factors: 8 bad faith, undue delay, prejudice to the opposing party, and/or futility.’” Serra v. Lappin, 9 600 F.3d 1191, 1200 (9th Cir. 2010) (quotation omitted). The Court’s discretion to deny 10 leave to amend is particularly broad where a plaintiff has previously amended the 11 complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 12 (9th Cir. 1996). 13 District courts properly deny leave to amend if the proposed amendment would be 14 futile or the amended complaint would be subject to dismissal. Saul v. United States, 15 928 F.2d 829, 843 (9th Cir. 1991). “[A] proposed amendment is futile only if no set of 16 facts can be proved under the amendment to the pleadings that would constitute a valid 17 and sufficient claim.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). 18 “Undue delay by itself is insufficient to justify denying leave to amend” it must be 19 accompanied by an “additional ground—such as prejudice or bad faith—that would 20 justify the denial of leave to amend in combination with undue delay.” United States v. 21 United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016) (internal citations 22 omitted). 23 Winters’ TCPA claims suffer from a non-futile flaw: he has not pleaded necessary 24 facts to establish an agency relationship—the foundation of his TCPA claims. Winters 25 specifically requests leave to amend in his response on the issue of agency arguing that 26 he “could provide more allegations regarding the nature of the relationship between 27 [Quicken Loans] and its Telemarketing Agent.” (Doc. 44 at 14 n.12.) Thus, while the 28 deficiencies in Winters’ agency arguments in his Third Amended Complaint are 1 numerous, his allegations could be adequately pleaded if he provides nonconclusory facts 2 in a fourth amended complaint. Accordingly, this Court should not deny leave to amend 3 based on futility. 4 The Court construes Quicken Loans’ argument, “enough is enough,” as an 5 argument for undue delay. (Doc. 45 at 11.) Quicken Loans’ argument for undue delay 6 carries much weight but, on balance, will be denied. Quicken Loans makes no argument 7 that it has suffered undue prejudice or that Winters has acted in bad faith. And so, 8 because courts favor granting leave to amend when justice requires, leave to amend is 9 granted on Winters’ TCPA claims. That said, Winters and his attorneys are reminded of 10 their obligations under Rule 11, Fed. R. Civ. P., and elsewhere that claims asserted in a 11 fourth amended complaint must “have evidentiary support or, if specifically so identified, 12 will likely have evidentiary support after a reasonable opportunity for further 13 investigation or discovery.” Rule 11(b)(3). The Court will not entertain purely 14 speculative allegations. Finally, the Court advises Winters that the delay factor is 15 anticipated to strengthen in the event that the next amended complaint falls below 16 expected pleading standards. 17 IV. CONCLUSION 18 Accordingly, 19 IT IS ORDERED granting Defendant Quicken Loans, LLC’s Motion to Dismiss 20 Plaintiff’s Third Amended Complaint (Doc. 43). Quicken Loans’ Motion as to all claims 21 is granted for failure to state a claim, with leave to amend. 22 IT IS FURTHER ORDERED that Plaintiff Winters shall file a fourth amended 23 complaint, if he so chooses, no later than 14 days after this Order is filed. 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS FINALLY ORDERED that, if Plaintiff Winters fails to file a fourth amended complaint within 14 days of the date of this Order, the Clerk of the Court shall || enter judgment dismissing this entire case with prejudice. 4 Dated this 29th day of October, 2021. 5 Michak T. Shure Michael T. Liburdi 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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