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