Anderson et al v. SeaWorld Parks and Entertainment

Northern District of California, cand-4:2015-cv-02172

ORDER DENYING {{99}} Motion to Dismiss Portions of Third Amended Complaint. Signed by Judge Jeffrey S. White on January 30, 2017. (jswlc3S, COURT STAFF)

Interested in this case?

Current View

Full Text

1 2 3 NOT FOR CITATION 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARC ANDERSON, et al., Case No. 15-cv-02172-JSW 8 Plaintiffs, ORDER DENYING MOTION TO DISMISS 9 v. Re: Dkt. No. 99 10 SEAWORLD PARKS AND ENTERTAINMENT, INC., 11 Defendant. 12 Northern District of California United States District Court 13 14 Now before the Court for consideration is the motion to dismiss filed by Defendant 15 SeaWorld Parks and Entertainment, Inc. ("SeaWorld"). The Court has considered the parties' 16 papers, relevant legal authority, and the record in this case, and the Court finds the motion suitable 17 for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). The Court VACATES the 18 motion hearing scheduled at 9:00 a.m. on February 3, 2017, and HEREBY DENIES Sea World's 19 motion. The parties shall appear at 11:00 a.m on February 3, 2017, for the case management 20 conference. 21 The Court has set forth the procedural history of this litigation and the facts in several prior 22 orders, and it shall not repeat them here. SeaWorld now moves to dismiss portions of the Third 23 Amended Complaint ("TAC"). Specifically, SeaWorld moves to dismiss the claim under the 24 Consumer Legal Remedies Act ("CLRA"), which is asserted on behalf of Plaintiff Kelly Nelson 25 ("Ms. Nelson") and all others similarly situated. SeaWorld moves to dismiss the claim brought by 26 Juliette Morizur ("Ms. Morizur") based on the "unfair" prong of California's Unfair Competition 27 Law ("UCL") on behalf of herself and all others similarly situated. The Court shall address the 28 1 1 relevant facts in its analysis. 2 ANALYSIS 3 A. Applicable Legal Standard. 4 SeaWorld moves to dismiss for failure to state a claim under Federal Rule of Civil 5 Procedure 12(b)(6). When the Court resolves such a motion, the Court's "inquiry is limited to the 6 allegations in the complaint, which are accepted as true and construed in the light most favorable 7 to the plaintiff." Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under 8 the liberal pleadings standard of Federal Rule of Civil Procedure 8(a)(2), "a plaintiff's obligation 9 to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, 10 and a formulaic recitation of the elements of a claim for relief will not do." Bell Atlantic Corp. v. 11 Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 12 Pursuant to Twombly, a plaintiff must not allege conduct that is conceivable but must allege Northern District of California United States District Court 13 "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial 14 plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable 15 inference that the Defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 16 678 (2009) (citing Twombly, 550 U.S. at 556). 17 In general, if the allegations are insufficient to state a claim, a court should grant leave to 18 amend, unless amendment would be futile. See, e.g. Reddy v. Litton Indus., Inc., 912 F.2d 291, 19 296 (9th Cir. 1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 20 246-47 (9th Cir. 1990). If a court has granted a plaintiff leave to amend, and if the plaintiff has 21 failed to correct deficiencies identified by the court, the court has "particularly broad" discretion to 22 deny leave to amend. See, e.g., Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013). 23 B. The Court Denies the Motion to Dismiss Ms. Nelson's CLRA Claim. 24 SeaWorld moves to dismiss the CLRA claim on the basis that Ms. Nelson did not file the 25 requisite venue affidavit with the TAC. The CLRA has specific venue requirements and provides 26 that "[a]n action under subdivision (a) or (b) may be commenced," inter alia, "in the county where 27 the transaction or any substantial portions thereof occurred." Cal. Civ. Code § 1780(d). The 28 CLRA also requires that "[c]oncurrently with the filing of the complaint, the plaintiff shall file an 2 1 affidavit stating facts showing that the action has been commenced in a county described in this 2 section as a proper place for the trial of the action." Id. If a plaintiff fails to file the required 3 affidavit, a court must dismiss the action without prejudice. Section 1780(d) refers to an "action," 4 not a claim, and courts have described the purpose of this rule is to ensure that an "action" is 5 commenced in a proper venue. See Seifi v. Mercedes-Benz, USA, LLC, No. 12-cv-5493-TEH, 6 2013 WL 2285339, at *8 (N.D. Cal. May 23, 2013); In re Apple In-App Purchase Litig., 855 F. 7 Supp. 2d 1030, 1037-38 (N.D. Cal. 2012).1 An "action" is defined as a "civil or criminal judicial 8 proceeding." See Black's Law Dictionary (10th ed. 2014), at 35. 9 It is undisputed that when Plaintiffs filed the Second Amended Complaint, Plaintiff Marc 10 Anderson filed an affidavit that set forth facts showing that venue was proper in this District when 11 this "action" was commenced. Likewise, in the TAC, Plaintiffs include facts showing why venue 12 is proper in this District and cite to Exhibit A. (Compare TAC ¶ 17 with Second Amended Northern District of California United States District Court 13 Complaint ¶ 17.) The allegations in the TAC are identical to the allegations in the SAC, and the 14 Court can infer Plaintiffs' refer to and rely on the affidavit that was filed with the SAC. 15 Accordingly, the Court concludes that the purpose of Section 1780(d) has been satisfied, 16 and it DENIES SeaWorld's motion to dismiss the CLRA claim. Cf. In re Easysavers Rewards 17 Litig., 737 F. Supp. 2d 1159, 1178 (S.D. Cal. 2010) (denying motion to dismiss where affidavit 18 filed by an individual who was no longer part of litigation but which established venue proper 19 when action commenced). 20 C. The Court Denies the Motion to Dismiss Ms. Morizur's UCL Claim. 21 SeaWorld moves to dismiss Ms. Morizur's UCL claim on the basis that the facts fail to 22 allege SeaWorld's conduct is "unfair." The paragraph in the second claim for relief, which sets 23 forth allegations about the unfair prong is conclusory. However, the Plaintiffs incorporated by 24 25 1 SeaWorld notes that at least one court within the Ninth Circuit has dismissed CLRA claims 26 on the basis that each of the named plaintiffs failed to file a venue affidavit. See In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d 1077, 27 1094 (S.D. Cal. 2010). The court in that case did not discuss the purpose of the venue affidavit requirement and did not provide a detailed analysis of why it required a venue affidavit from each 28 plaintiff. The Court finds the reasoning in the Seifi and In re Apple In-App cases more persuasive, and for that reason declines to follow In re Sony Grand. 3 1 refference facts from earlierr in the TAC C. (See TAC C ¶¶ 61, 65.) Ms. Morizuur alleged thhat she asked d 2 "SeeaWorld's trrainers questtions about their captive orca's collaapsed dorsal fins." (TAC C ¶ 20.) Ms.. 3 Mo orizur also allleged that th he trainers to old her that tthe collapsedd dorsal finss were "norm mal, and also o 4 equ ually commo on in the willd. They also o told Ms. M Morizur that captivity in general does not harm 5 orccas." (Id.) 6 The parrties dispute whether SeaaWorld shouuld be permiitted argue thhat these alleegations are 7 inssufficient to state s a claim m. Plaintiffs argue SeaW World waivedd this argumeent by failing to raise it 8 in its i earlier mo otions, relyin ng on Federaal Rule of C Civil Proceduure 12(g)(2). SeaWorld argues that 9 it could c not hav ve raised this argument until u Plaintifffs filed the T TAC, because Ms. Moriizur had not 10 cleearly alleged which repreesentations she s relied onn to plead herr UCL claim m. Yet, SeaW World has 11 attaacked portio ons of the Plaaintiffs' claim ms in its prioor motions, iincluding thhat portion off the FAL 12 claaim that relieed on Ms. Morizur's con nversations w with SeaWorrld's trainerss. Northern District of California United States District Court 13 The Co ourt will not deny the mo otion on the bbasis that SeeaWorld shoould be barreed from 14 assserting this argument a und der Rule 12((g)(2). SeaW World did asssert, albeit inn a footnote,, in its 15 mo otion to dism miss the Seco ond Amended Complaintt that "Plainttiffs also arggue that evenn if 16 Mo orizur's FAL L, CLRA, an nd UCL 'unlaawful' claim ms all fail, heer UCL 'unfa fair' claim shhould remain n 17 … but cite to no n facts in the SAC to sup pport a UCL L 'unfair' claaim premised on her connversation 18 witth the SeaWo orld trainerss." (See Dktt. No. 88, Reeply Br. at 155 n.12 (emphhasis added)).) In its 19 Ord der resolving g the motion n to dismiss the t SAC, thee Court stateed that Ms. M Morizur coulld proceed 20 on her UCL claaim to the ex xtent it was premised p onn the unfair pprong. The C Court finds nno basis to 21 rev visit that con nclusion, and d it finds thatt SeaWorld' s argumentss are better raaised by wayy of a 22 mo otion for sum mmary judgm ment or in op pposition to a motion forr class certifi fication. 23 CONCLU USION 24 For the foregoing reeasons, the Court C DENIE ES SeaWorlld's motion tto dismiss. 25 IT IS SO S ORDER RED. 26 Daated: January y 30, 2017 27 __________________________________________ JEFFFREY S. W WHITE 28 Unnited States D District Judgge 4