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Taylor v. Alore, LLC

United States District Court, W.D. Washington, Tacoma

August 27, 2019

ALLEN TAYLOR, Plaintiff,
v.
ALORE, LLC, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT AND DENYING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AS MOOT

          BENJAMIN H. SETTLE United States District Judge.

         This matter comes before the Court on Plaintiff Allen Taylor's (“Taylor”) motion for leave to amend complaint, Dkt. 21, and Defendant Alore, LLC's (“Alore”) motion for judgment on the pleadings, Dkt. 25. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion to amend and denies the motion for judgment on the pleadings as moot for the reasons stated herein.

         I. PROCEDURAL HISTORY

         On February 1, 2019, Taylor filed suit against Alore bringing claims under the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the Washington Unfair Business Practices - Consumer Protection Act (“CPA”) RCW Chapter 19.86, and Washington's law against invasion of privacy, RCW 42.56.050. Dkt. 1. On April 2, 2019, Alore answered and asserted twelve affirmative defenses. Dkt. 13.

         On June 10, 2019, Taylor moved to amend his complaint. Dkt. 21. On June 24, 2019, Alore responded. Dkt. 24. Also on June 24, 2019, Alore filed a motion for judgment on the pleadings. Dkt. 25. On June 28, 2019, Taylor replied to Alore's response to his motion. Dkt. 26. On July 15, 2019, Taylor responded to Alore's motion. Dkt. 27. On July 19, 2019, Alore replied to Taylor's response to its motion and filed a request for judicial notice regarding its motion. Dkts. 28, 29. On July 22, 2019, Taylor filed a motion for leave to surreply in opposition to Alore's motion for judgment on the pleadings. Dkt. 30.

         II. FACTUAL BACKGROUND

         Taylor is a senior with diabetes who lives in Aberdeen, Washington. Dkt. 1, ¶¶ 7, 10. Medicare covers the cost of Taylor's diabetic test strips. Id., ¶ 14. Alore is a pharmaceutical company that delivers medical supplies and medications to its customers' homes. Id., ¶ 8.

         Taylor alleges that he had been an Alore customer but received “so many deliveries of diabetic test strips . . . that [he] could never use them all.” Id., ¶¶ 13-14. Therefore, in early 2018, he asked Alore to cancel his account and cease deliveries. Id., ¶ 14. Taylor alleges that Alore confirmed it had cancelled his account. Id., ¶ 15.

         In approximately June 2018, Taylor began receiving “incessant” solicitation calls from Alore on his cell phone. Id., ¶¶ 11, 15. Taylor alleges that between June 2018 and January 2019, he received approximately 150 calls from Alore. Id., ¶ 23.

         Taylor alleges generally that these calls were made without his consent, that when he answered the calls he asked Alore to stop calling, and that he even initiated several calls to Alore to request it cease calling. Id., ¶¶ 11-17. He alleges that most of the calls resulted in prerecorded voicemails with the message: “This is ALORE pharmacy. If you are ready to reorder your supplies, contact us at 866-938-4482.” Id., ¶ 24.

         Taylor alleges specifically that he answered at least ten calls from Alore between June 2018 and December 2018, each time telling the representative that he revoked consent to be called on his cell phone. Id., ¶¶ 19-21 (referring to conversations on June 8, 2018, August 26, 2018, August 27, 2018, November 19, 2018, November 25, 2018, November 28, 2018, December 2, 2018, and December 9, 2018). Taylor also alleges that when he answered calls, he “heard a pause before the representative began to speak, indicating the use of an automated telephone dialing system.” Id., ¶ 21. Taylor alleges that because of these calls, he suffered stress, frustration, headaches, and emotional and mental anguish. Id., ¶ 26.

         III. DISCUSSION

         Taylor seeks to amend his complaint to add facts learned through informal information exchange between the parties and to add two additional claims under Washington law. Dkt. 21 at 2. Specifically, Taylor seeks to make amendments including: (1) to reduce the number of calls he alleges occurred after he revoked consent to be called, [1](2) to allege that he received calls from Allore consisting of prerecorded messages and add a claim that this violates the Washington Automatic Dialing and Announcing Device Act (“WADAD”) RCW 80.36.400, [2] (3) to request attorneys' fees and costs pursuant to his CPA claim, and (4) to add a claim under Washington's Do Not Call provision (“WDNC”) RCW 80.36.390, which prohibits telephone solicitation within a one-year period following the called party's statement or indication that he or she does not wish to be called again. Id.

         Under Fed.R.Civ.P. 15(a)(2), “a party may amend its pleading only with the opposing party's written consent or the court's leave.” In determining whether amendment is appropriate, the Court considers five potential factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether there has been previous amendment. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). Leave to amend ...


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