Birch v. Family First Life, LLC

Full title: GREG BIRCH, individually and on behalf of all others similarly situated…

Court: United States District Court, Southern District of California

Case no: 22-cv-815-MMA (NLS)

Date published: Apr 13, 2023

Fact: 

In this putative class action, Plaintiffs Greg Birch, David Doehring, and Michael Borish (“Plaintiffs”) allege they relied on false representations made by Defendants Family First Life, LLC (“FFL”), Shawn Meaike, and Andrew Taylor (“Defendants”) in purchasing low-quality insurance “leads” while working as independent contractors for FFL, an insurance marketing organization. Doc. No. 7 (Second Amended Complaint, the “SAC”) ¶¶ 18, 23-26. On October 11, 2022, Defendant FFL filed two motions: (1) a motion to dismiss Plaintiffs’ SAC pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), 12(b)(2), and 12(b)(6); and (2) a motion to transfer or, in the alternative, stay pursuant to the first-to-file rule. Doc. Nos. 21, 24. On that same date, Defendants Meaike and Taylor filed their own motion to dismiss pursuant to Federal Rules of Civil  Procedure 12(b)(2), 12(b)(6), and the doctrine of forum non conveniens. Doc. No. 20. Plaintiffs filed oppositions, Doc. Nos. 31-33, to which Defendants replied, Doc. Nos. 38-40. The Court found the matters suitable for determination on the papers and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 41. For the reasons set forth below, the Court GRANTS Defendants’ motions to dismiss and DENIES Defendant FFL’s motion to transfer or stay pursuant to the first-to-file rule.

Issue:

Conclusion

For the foregoing reasons, the Court DENIES Defendant FFL’s motion to transfer or stay pursuant to the first-to-file rule and GRANTS Defendants’ motions to dismiss with leave to amend. Plaintiffs may file a third amended complaint on or before May 4, 2023 . Any third amended complaint will be the operative pleading, and therefore Defendants must respond within the time prescribed by Federal Rule of Civil Procedure 15. Any claim not re-alleged in the third amended complaint will be considered waived. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Caty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with  leave to amend which are not re-alleged in an amended pleading may be “considered waived if not repled”).

Although Plaintiffs have amended their allegations twice before by way of the First Amended Complaint, Doc. No. 3, and SAC, until now, the Court has not ruled on the pleading sufficiency of Plaintiffs’ claims. Because Plaintiffs could conceivably cure the above deficiencies, the Court grants Plaintiffs leave to amend. See Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

IT IS SO ORDERED.

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