Gaddis et al v. US Bank

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Darnell Gaddis, et al.,
Plaintiffs,
v.
US Bank NA,
Defendant.
No. CV-24-02683-PHX-DJH
ORDER
Defendant U.S. Bank National Association (“US Bank” or “Defendant”) filed a
Motion to Dismiss pro se Plaintiffs Darnell Gaddis and Kahala Gaddis’s (collectively,
“Plaintiffs”) Second Amended Complaint (“SAC”) for failure to state a claim (Doc. 45).
Plaintiffs initially did not file a response, and the Court, therefore, issued an Order to Show
Cause (Doc. 47). Plaintiffs then filed a Response to the Order to Show Cause and
Defendant’s Motion to Dismiss (Doc. 48), and Defendant filed a Reply (Doc. 49).
After Defendant filed its Reply, Plaintiff filed a Response in Opposition to
Defendant’s Motion to Dismiss (Doc. 50). Defendant, consequently, filed a Motion to
Strike the Response (Doc. 51). Defendant’s Motion to Strike is fully briefed.
(See Docs. 52, 53).
I. Background
Plaintiffs allege they sent a Defendant cease-and-desist letter instructing it to stop
all communications with them on April 26, 2022. (Doc. 42 at 2, 7-11). On April 29, 2022,
Defendant allegedly mailed a letter confirming that it received the cease-and-desist letter.
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(Id. at 2, 14). Notwithstanding its confirmation, Plaintiffs allege that Defendant then called
Plaintiffs twenty-seven times from September 16, 2024, to October 7, 2024. (Id. at 2, 16-
18). Plaintiffs allege “Defendant’s calls occurred with excessive frequency [. . .] despite
Plaintiffs’ clear and repeated verbal revocations, made during live conversations on
September 17, 19, and 23, 2024. Additionally, Plaintiffs recorded subsequent calls with
Defendants’ agents on September 24, October 2, and October 4, 2024.” (Id. at 2). “No
voicemails were left, yet the excessive volume, repetitive nature, and timing of the calls
caused significant disruption to Plaintiffs’ daily lives, interfering with their peace of mind,
sleep, and ability to receive important communications.” (Id.). “When Plaintiffs returned
the phone calls using the number displayed on their caller ID, the caller ID name appeared
as either ‘Debt Collector Credit Agency’ or ‘Bank Card Prepaid Debit Card.’ ” (Id.) Upon
returning the call, Plaintiffs allegedly received an automated greeting that stated “ ‘[t]hank
you for calling Card Member Services.’” (Id.) At some point after the greeting, Plaintiffs
says they spoke to a live agent who verified their personal information. (Id.) After
Plaintiffs disclosed their information to the agent, the agent informed them the call was
being recorded and was an attempt to collect a debt issued by Defendant. (Id.) Plaintiffs
allege that these calls only ended when the current legal action was brought. (Id.)
Plaintiffs originally filed suit on October 7, 2024, and have since amended their
Complaint twice. On July 11, 2025, Plaintiffs filed their SAC (Doc. 42), bringing claims
under the Fair Debt Collection Practices Act (“FDCPA”) and the Telephone Consumer
Protection Act (“TCPA”) against Defendant. (Id. at 1). Defendant now moves to dismiss
Plaintiffs’ SAC for failure to state a claim for relief. (Doc. 45).
II. Legal Standard
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim.
Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and
plain statement showing that the pleader is entitled to relief for their claims.
Fed. R. Civ. P. 8(a)(2). This standard does not require “‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). A plaintiff must allege facts sufficient to “raise a right to relief above
the speculative level” and “state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 555, 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint
states a plausible claim for relief will [. . .] be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Dismissal of a complaint for failure to state a claim may be based on either the “lack
of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In
reviewing a motion to dismiss, courts will “accept factual allegations in the complaint as
true and construe the pleadings in the light most favorable to the nonmoving party.”
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But
courts are not required “to accept as true a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
When considering a motion to dismiss based on failure to state a claim, a court may
“consider certain materials—documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of judicial notice—without
converting the motion to dismiss into a motion for summary judgment.” United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “However, [courts] need not. . . accept as true
allegations that contradict matters properly subject to judicial notice or by exhibit.”
Produce Pay, Inc. v. Izguerra Produce, Inc., 39 F.4th 1158, 1161 (9th Cir. 2022) (internal
citations and quotes omitted). Where there is a conflict between allegations in the
complaint and exhibits attached to the complaint, the exhibits control. Stockwell v. Kanan,
442 F. App’x 911, 913 (5th Cir. 2011); see also Friess v. Shellpoint Mortg. Servicing, 2022
WL 742728, at *4 n.5 (D. Ariz. Mar. 11, 2022) (finding plaintiff failed to state a claim
when allegation is directly contradicted by defendant’s attached evidence) (citing Steckman
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v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998)).
III. Discussion
Defendant moves to dismiss Plaintiffs’ FDCPA and TCPA claims, arguing that
Plaintiffs do not and cannot establish vital elements of their claims. (See Doc. 45 at 3–8).
Plaintiffs disagree, asserting that the “false name” exception applies to its FDCPA claim
and that whether Defendant used an automated dialing system is a factual question not
appropriate to consider at this stage. (Doc. 45 at 2). The Court will consider each of
Plaintiffs’ claims in turn.
A. FDCPA Claim
Defendant asserts that it is not a third-party debt collector and is therefore not subject
to the FDCPA. 15 U.S.C. § 1692a(6). Plaintiffs assert that Defendant, by making use of
a different name, is effectively a debt collector. (Doc. 42 at 3). For the following reasons,
the Court finds that Plaintiffs have not sufficiently plead their claim.
The FDCPA was enacted to “to eliminate abusive debt collection practices by debt
collectors [. . .] and to promote consistent State action to protect consumers against debt
collection abuses.” 15 U.S.C. § 1692(e). To achieve this end, the FDCPA strictly regulates
the conduct of debt collectors by both imposing affirmative duties and prohibiting abusive
practices. Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1060–61 (9th Cir. 2011).
It proscribes “any conduct the natural consequence of which is to harass, oppress, or abuse
any person in connection with the collection of a debt.” 15 U.S.C. § 1692d.
Nonetheless, §1692d only applies to the actions of debt collectors as defined by
§ 1692a. 15 U.S.C. § 1692d (“A debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person in connection with the
collection of a debt.”) (emphasis added). Whether an entity qualifies as a debt collector is
a question of law. See Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1208 (9th Cir.
2013) (“Because these prohibitions apply only to “debt collector[s]” as defined by the
FDCPA, the complaint must plead ‘factual content that allows the court to draw the
reasonable inference’ that Wells Fargo is a debt collector.”); see also Alston v. Midland
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Credit Mgmt. Inc., No. CV-25-02196-PHX-DWL, 2025 WL 2444056, at *3 (D. Ariz. Aug.
25, 2025) (dismissing plaintiff’s claim for failing to allege that Defendant was a debt
collector); see also Gayford v. Flagstar Bank FSB, 2014 WL 11662796, at *3 (D. Ariz.
Oct. 10, 2014) (dismissing plaintiff’s claim for failing to factually allege defendant was a
debt collector). The FDCPA defines “debt collector” as “any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose
of which is the collection of any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C.
§ 1692a(6). Debt collectors are implicated under the FDCPA, while creditors who seek
only to collect on their own debts generally are not. 15 U.S.C. § 1692a(4),(6)(F).
Plaintiffs allege that Defendant, “the original creditor,” is nonetheless liable under
the FDCPA here because “it acted as a ‘debt collector’ within the meaning of 15 U.S.C.
§1692a(6) by operating a dedicated internal collections department under the name “Card
Member Services.” (Doc. 42 at 3). Under the FDCPA, a creditor only constitutes a “debt
collector” if “in the process of collecting [its] own debts, [it] uses any name other than [its]
own which would indicate that a third person is collecting or attempting to collect such
debts.” 15 U.S.C. § 1692a(6). This is the “false name” exception. “The false-name
exception has three components: a creditor must (1) use a name other than its own (2) in a
way that would indicate a third person is attempting to collect its debt (3) in the process of
collecting its own debt.” Pinson v. JPMorgan Chase Bank, Nat’l. Ass’n., 942 F.3d 1200,
1209 (11th Cir. 2019); 15 U.S.C. § 1692a(6).
Defendant argues that Plaintiffs’ “allegations do not meet the exception” and that
the “allegations and the SAC exhibits defeat any argument that Plaintiffs were fooled into
believing that ‘Cardmember Services’ was anything other than a department within U.S.
Bank charged with servicing credit cards.” (Doc. 45 at 5–6, 8).
Courts in the Ninth Circuit use a “least sophisticated debtor” standard in assessing
whether debt collector communications violate the proscriptions of § 1692e, and the Court
finds it appropriate to apply this standard to determine a debtor’s perception under
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1692a(6).. See e.g., Afewerki v. Anaya L. Grp., 868 F.3d 771, 775 (9th Cir. 2017)
(affirming the standard for § 1692e); Baker v. G. C. Servs. Corp., 677 F.2d 775, 778 (9th
Cir. 1982) (establishing the standard for § 1692g). The “least sophisticated debtor”
standard “is ‘designed to protect consumers of below average sophistication or
intelligence,’ or those who are ‘uninformed or naive,’ particularly when those individuals
are targeted by debt collectors.” Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1062
(9th Cir. 2011) (quoting Duffy v. Landberg, 215 F.3d 871, 874–75 (8th Cir. 2000)). Thus,
although it is still an objective one, “the standard is lower than simply examining whether
particular language would deceive or mislead a reasonable debtor.” Swanson v. S. Oregon
Credit Serv., Inc., 869 F.2d 1222, 1227 (9th Cir. 1988). However, the least sophisticated
consumer standard prevents liability for idiosyncratic, bizarre, or unreasonable
assumptions regarding the collection action “by preserving a quotient of reasonableness
and presuming a basic level of understanding and willingness to read with care.” United
States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 136 (4th Cir. 1996); Afewerki, 868 F.3d at
775; Pinson, 942 F.3d at 1209. See also Gonzales, 660 F.3d at 1062 (quoting Rosenau v.
Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008), for same proposition).
Plaintiffs allege two ways Defendant misled them into thinking it was a third-party
debt collector. First, Plaintiffs say the automated greeting they received when they returned
Defendant’s calls identified itself as “Card Member Services” instead of US Bank.
(Doc. 42 at 3). Second, Plaintiffs say that Defendant used two caller IDs, “Debt Collector
Card Agency” and “Bank Card Prepaid Debit Card,” neither which were Defendant’s
name. (Doc. 42 at 3). The Court will examine each of these allegations.
1. Automated Greetings
Plaintiffs first allege that when they would return calls to the number on their caller
ID, an “automated voice stated: ‘Thank you for calling Card Member Services.’” (Id. at 3).
Plaintiffs say “[a]t no time did the greeting identify U.S. Bank, nor did it disclose that ‘Card
Member Services’ was U.S. Bank.” (Id.) Plaintiffs’ own Exhibits, however, contradict
these allegations.
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Plaintiffs characterize Exhibit E to the SAC as a “Transcription of recordings related
to the unsolicited calls.” (Doc. 42 at 19). Those transcripts reflect that customer service
representatives state the calls were coming from US Bank, ask Plaintiff Gaddis if she had
any other accounts with US Bank, and assure her that she “shouldn’t receive any more calls
from US bank.” (Id. at at 21 (“And this is a us [sic] bank card”), 24 (“We were calling
from us [sic] bank.”), 25, 28). Plaintiffs were promptly informed of the caller’s identity
shortly after the automated greeting. (Doc. 42 at 2). Thus, even if the automated greeting
was initially misleading, Plaintiffs’ exhibits indicate that the customer agent resolved that
uncertainty when Plaintiffs returned the calls. Contrast with Maguire v. Citicorp Retail
Servs., Inc., 147 F.3d 232, 236 (2d Cir. 1998) (holding personnel’s failure to identify as
creditor’s employees when receiving calls was deceptive because it prevented debtors from
discovering the nature of their debt).
Plaintiffs’ Exhibit B is an April 29, 2022, letter on US Bank letterhead, instructing
Mr. Gaddis to mail or fax any revocation of his verbal cease and desist request to
“Cardmember Service.”1 (Doc. 42 at 14). This letter is signed by Cardmember Service,
but denotes at the bottom that US Bank is “the creditor and issuer”. (Id. (“The creditor and
issuer is [sic] U.S. Bank National Association”)). Even if the least sophisticated consumer
believed “Cardmember Service” was a third party, this misunderstanding would have been
dispelled by the letterhead and the text at the bottom of the letter. Contrast with Maguire,
147 F.3d at 236 (holding that prior correspondences were insufficient because stationary,
return address, and text all failed to indicate “Debtor Assistance” was part of defendant).
These Exhibits contradict Plaintiffs assertion that they were fooled into believing that
someone other than US Bank was trying to collect on its debt.
2. Automated Caller Identification
Plaintiffs further allege that the use of two distinct caller IDs, “Debt Collector Credit
Agency” and “Bank Card Prepaid Debit Card,” led Plaintiffs to believe multiple entities
1 Plaintiffs transcribe this name as “Card Member Services” in the SAC. (See e.g. Doc. 42
at 2). The Court finds this transcription distinction negligible.
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were attempting to contact them. (Doc. 42 at 3). But under the circumstances as alleged
by Plaintiffs, the fact that the caller identifications failed to indicate US Bank was calling
does not indicate a third person was attempting to collect on the debt. Plaintiffs’ own
allegations acknowledge that when these calls were returned, the receiver identified
themselves as US Bank employees shortly after the call began. (Id. at 2). As discussed
above, even if the initial unanswered calls raised questions as to who was calling on the
debt, Plaintiffs’ exhibits indicate that the customer agent resolved that uncertainty when
Plaintiffs returned the calls. Contrast with Maguire 147 F.3d at 236 (holding personnel’s
failure to identify as creditor’s employees when receiving calls was deceptive because it
prevented debtors from discovering the nature of their debt). Even Plaintiffs’ statements
to the customer service representative indicate that despite the different caller IDs, they
knew these calls were from the same caller. (Doc. 42 at 2 (“Plaintiffs’ clear and repeated
verbal revocations of consent, made during live conversations on September 17, 19, and
23, 2024”); at 21 (“And so I called yesterday after receiving multiple calls”); Id. at 24
(“You guys keep calling me every single day.”); at 28 (“I’ve had multiple conversations
about not calling my number.”)). Id. Therefore, Plaintiffs cannot sustain a claim under
§1692a(6) based on the caller ID.
Under the circumstances alleged by Plaintiffs in their SAC, the least sophisticated
debtor would have understood the calls they were receiving were from creditor US Bank
to collect on an outstanding balance. The false-name exception does not apply such that
Defendant can be liable under the FDCPA as a third-party debt collector. Moreover, as
Plaintiffs’ allegations are contradicted by their own exhibits and Plaintiffs’ have twice
amended their Complaint, the Court finds further amendment would be futile. Plaintiffs’
FDCPA claim is therefore dismissed with prejudice. Cf. Ebner v. Fresh, Inc., 838 F.3d
958, 966 (9th Cir. 2016) (finding dismissal of a claim that could not meet the reasonable
consumer standard was not in error).
B. TCPA Claim
Plaintiffs also allege that Defendants violated the TCPA, specifically 47 U.S.C.
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§ 227(b)(1)(A), which prohibits the use of “any automated telephone dialing system or an
artificial or prerecorded voice” used to make non-emergency calls or calls without prior
express consent. Defendant argues that Plaintiffs’ claim should be dismissed because they
fail to allege that Defendant utilized an automatic telephone dialing system (“ATDS”).
(Doc. 45 at 3–4). Plaintiffs make three counter allegations: (1) that the question of whether
Defendant made use of an ATDS is a factual determination (Doc. 42 at 2), (2) because they
revoked their consent, any calls were presumptively unlawful, regardless of the method or
technology used (id.), and (3) that the calls were preceded by a “two-to-three second pause,
indicating the use of an autodialer” and that “several were placed in rapid succession,
consistent with predictive dialing” (Doc. 48 at 2). The Court will address each of these
assertions individually. The Court notes that a complaint is not an appropriate place to
raise arguments or cite case law. However, the Court will briefly address Plaintiffs’ cited
cases where they are relevant.
1. Plaintiffs must allege the use of ATDS at the pleading stage.
Plaintiffs argue that “the specific capabilities of Defendant’s call system—whether
it qualifies as an ATDS—are factual issues appropriate for discovery, not dismissal.”
(Doc. 42 at 2). Plaintiffs cite Meyer v. Bebe Stores, Inc., 2015 WL 431148, at *4 (N.D.
Cal. 2015) to support this claim. (Id.) This citation does little to help Plaintiffs, however.
The Meyer plaintiff did allege the use of an ATDS, with evidence such as the fact that a
message was issued en masse and contained a request to opt-in. Meyer, 2015 WL 431148
at *4 (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). Thus,
the Meyer court necessarily did not find that plaintiffs were not required to allege the use
of an ATDS. Instead, it held that the allegation needs to be plausible to survive a motion
to dismiss. Id. The Ninth Circuit has been clear that a valid TCPA claim requires plaintiff
to allege “(1) the defendant called a cellular telephone number; (2) using an automatic
telephone dialing system; (3) without the recipient’s prior express consent.” Los Angeles
Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 804 (9th Cir. 2017) (internal citations and
quotations omitted). Plaintiffs cannot file a lawsuit without supporting facts in the hope of
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later discovering facts to support their theory. See Webb v. Trader Joe's Co., 999 F.3d
1196, 1204 (9th Cir. 2021) (holding the court cannot condone the use of discovery as a
‘fishing expedition’ when plaintiff has only gross speculation). Rather, Plaintiffs must
plead sufficient, supporting facts that Defendants used an ATDS in their SAC, and they
have failed to do so here.
2. Revocation of consent does not render calls presumptively
unlawful.
Plaintiffs claim that “[t]he core issue is that Defendant made repeated calls after
consent had been revoked,” and that, after consent is revoked, “any subsequent calls are
presumptively unlawful under the TCPA, regardless of method or technology used.
(Doc. 42 at 2). In the SAC, to support this argument, Plaintiffs cite Van Patten v. Vertical
Fitness Grp., LLC, 847 F.3d 1037, 1040 (9th Cir. 2017). In their Response, Plaintiffs cite
to Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014). (Doc. 48 at ¶13).
Neither of these cases support Plaintiffs’ assertions, however. Van Patten does not support
the premise that the method or technology used is irrelevant, because there both parties
agreed the defendants made use of ATDS. Van Patten, 847 F.3d at 1043. Like Van Patten,
Osorio does not state that the use of technology is irrelevant, because neither party contests
the use of ATDS. Osorio, 746 F.3d 1242 at 1249 (defendant argued autodialing was
prohibited only when the called party was charged for the call). Plaintiffs assertion that
consent is the primary and effectively only factor runs counter to the plain language of the
statutory text, which lists consent as one of three required elements. 47 U.S.C.
§ 227(b)(1)(A); see also Los Angeles Lakers, Inc., 869 F.3d at 804 (listing the required
elements for a pleading under the TCPA).
3. Plaintiffs’ additional information is insufficient to allege a
TCPA claim.
In their Response, Plaintiffs make additional allegations to support their TCPA
claim. (Doc. 48 at 2). These allegations are not present in their SAC and cannot cure the
deficiency in the operative pleading. See Schneider v. Cal. Dept. of Corr., 151 F.3d 1194,
1197 n. 1 (9th Cir.1998) (holding that when considering Rule 12(b)(6) dismissal the court
cannot “look beyond the complaint to a plaintiff’s moving papers.”) (citing Harrell v.
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United States, 13 F.3d 232, 236 (7th Cir.1993)). However, the Court will analyze this
allegation because it is pivotal to Plaintiffs’ potential leave to amend.
Plaintiffs’ assert two claims in their Response: (1) that the presence of a brief pause
indicates the use of an automated dialer; (2) that several calls were placed in rapid
succession, consistent with predictive dialing. (Doc. 48 at 2). The Supreme Court has held
that an automated dialer alone is not the same as the sort of ATDS intended to be prohibited
by TCPA. Facebook, Inc. v. Duguid, 592 U.S. 395, 405—07 (2021) (holding that the
TCPA does not include equipment that does not use a random or sequential number
generator); see also Borden v. eFinancial, LLC, 53 F.4th 1230, 1235 (9th Cir. 2022)
(holding that “using a random or sequential number generator to select from a pool of
customer-provided phone numbers would not cause the harms contemplated by
Congress.”). The Supreme Court held that expanding the definition of ATDS to include
any machine that could predictively or automatically dial would inflict the TCPA on
ordinary “cell phone owners in the course of commonplace usage, such as speed dialing or
sending automated text message responses.” Facebook, 592 U.S. at 406. Plaintiffs’
allegations must therefore include the use of sequential or random number telephone
generation. See Borden, 53 F.4th at 1233 (affirming that a pleading must allege the use of
a random telephone number generator to plausibly plead a violation of the TCPA).
Plaintiffs do not allege the use of random numbers at any point in their SAC. In fact,
Plaintiffs’ SAC discredits the assertion that Defendant was calling numbers at random.
Upon returning the call, Plaintiffs were informed that Defendant was seeking a specific
debt from them. (Doc. 42 at 2). This is more in line with Borden, where the plaintiff
provided the defendant with his phone number and then received marketing messages from
the defendant. Borden, 53 F.4th at 1232. The plaintiff in Borden contended that the use
of random number generator at any point in the call was a violation of the TCPA. Id. at
1233. The Borden court rejected that contention noting that “an autodialer must randomly
or sequentially generate telephone numbers, not just any number.” Id. The Borden court
held that randomly selecting a number from a preproduced list was not a violation of the
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TCPA. Id. at 1236. Plaintiffs allege even less randomness, only alleging the use of
predictive or automatic dialing to recover a particular debt. (Doc. 42 at 2; Doc. 48 at 2).
Plaintiffs have failed to sufficiently allege the use of an ATDS, even considering the new
allegations presented in their Response.
4. Conclusion on the TCPA Claim.
Because Plaintiffs do not sufficiently allege the use of an ATDS in their SAC, they
cannot maintain their claim under 47 U.S.C. § 227. (Doc. 42 at 2). Plaintiffs have already
amended their complaint in an attempt to cure this defect, but have failed to do so.
Plaintiffs’ SAC provides evidence that the calls were not random or sequential, but in fact
directed at existing customers. The Court concludes that further amendment would be
futile and will therefore dismiss the SAC with prejudice. See Webb, 999 F.3d at 1204
(affirming dismissal with prejudice when plaintiff is entirely reliant on discovery to allege
his claims); see also Jovanovic v. SRP Invs. LLC, No. CV-21-00393-PHX-JJT, 2021 WL
4198163, at *4 (D. Ariz. Sept. 15, 2021).
IV. Motion to Strike
Following Defendant’s Reply to its Motion to Dismiss, Plaintiffs filed a “Response
in Opposition to Defendant’s Motion to Dismiss Second Amended Complaint” (Doc. 50).
Notwithstanding the filing’s title, Plaintiffs had already filed a Response (Doc. 48) to
Defendant’s Motion, and briefing on Defendant’s Motion was complete upon the filing of
Defendant’s Reply (Doc. 49). Plaintiffs’ filing was thus an unauthorized sur-reply.
Plaintiffs’ Sur-Reply prompted Defendant to file a Motion to Strike Plaintiffs’
improper surreply. The Court agrees that the filing is an improper surreply as no leave was
granted to file it. Moten v. U.S. A.F., Bd. for Correction of Mil. Records, 2019 WL 357901,
at n.1 (D. Ariz. 2019) (“Neither the local rules of the District of Arizona nor Fed. R. Civ.
P. 7 authorize the filing of a surreply without first being granted leave of the Court.”).
However, because the Court recognized the filing as an unauthorized surreply, it did not
consider the filing in rendering its decision. In consequence, Defendant’s Motion to Strike
(Doc. 51) is denied as moot.
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Accordingly,
IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 45) is GRANTED
with prejudice. The Clerk of Court is directed to enter judgment accordingly and close
this matter.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike (Doc. 51) is
DENIED as moot.
Dated this 24th day of March, 2026.
Honorable Diane J. Humetewa
United States District Judge
Case 2:24-cv-02683-DJH Document 54 Filed 03/24/26 Page 13 of 13