ANDREW D. CASTRICONE (SBN 154607 JUSTIN A. ZUCKER (SBN ...

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FLUENT, LLC’S OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT

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ANDREW D. CASTRICONE (SBN 154607 [email protected] JUSTIN A. ZUCKER (SBN 284401) [email protected] GORDON&REES SCULLY MANSUKHANI 275 Battery Street, Suite 2000 San Francisco, CA 94111 Telephone: (415) 986-5900 Facsimile: (415) 262-3726 Attorneys for Defendants FLUENT, LLC, served and f/k/a FLUENT, INC.; REWARD ZONE USA, LLC; REWARDSFLOW LLC; AMERICAN PRIZE CENTER, LLC; and MOHIT SINGLA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION

MIRA BLANCHARD, et al.,

Plaintiffs,

vs. FLUENT, LLC, et al.,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 3:17-cv-04497-MMC MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT ACCOMPANYING DOCUMENTS: Declaration of Andrew D. Castricone; Request for Judicial Notice Date: March 23, 2018 Time: 9:00 a.m. Courtroom: 7 (19th Floor) Judge: Maxine M. Chesney Complaint filed September 16, 2016

Case 3:17-cv-04497-MMC Document 61 Filed 03/02/18 of 13

mailto:[email protected]

mailto:[email protected]

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-i- FLUENT, LLC’S OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT

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TABLE OF CONTENTS

I. INTRODUCTION/SUMMARY OF ARGUMENT ........................................................... 1

II. STATEMENT OF FACTS/PROCEDURAL BACKGROUND ........................................ 2

III. ARGUMENT ...................................................................................................................... 5

A. Plaintiffs Proposed Amended Complaint Is Futile ................................................. 5

1. Plaintiffs Fail To State A Claim Against 404 Publishing That It Advertised In The Emails In Issue .............................................................. 5

2. Plaintiffs’ Claims Against 404 Publishing Are Time Barred ..................... 6

B. Plaintiffs’ Amendment Is Untimely And Prejudices Fluent’s Ability To Litigate In This Court Where It Has Expended Time and Resources ..................... 7

1. Undue Delay in Plaintiffs’ Bringing their Motion for Leave ..................... 8

2. Fluent Will Be Prejudiced By Amendment at this Juncture ....................... 9

IV. CONCLUSION ................................................................................................................. 10


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-ii- FLUENT, LLC’S OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT

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TABLE OF AUTHORITIES

Cases

Clinco v. Roberts, 41 F.Supp.2d 1080 (C.D. Cal. 1999) ........................................................................................ 10

Desert Empire Bank v. Insurance Co. of No. America, 623 F.2d 1371 (9th Cir. 1980) .................................................................................................. 10

Duchrow v. Forrest, 215 Cal.App.4th 1359 (2013) ..................................................................................................... 5

Hypertouch, Inc. v. Azoogle.com, Inc., 386 Fed. Appx. 701, 2010 WL 2712217 (9th Cir. 2009) ........................................................... 7

Ingram v. Sup. Ct. (Slinkard), 98 Cal.App.3d 483 (1979) .......................................................................................................... 7

Internet Servs. v. Consumerbargaingiveaways, LLC, 622 F. Supp. 2d 935 (N.D. Cal. 2009) ........................................................................................ 7

Magpali v. Farmers Group, Inc., 48 Cal.App.4th 471 (1996) ......................................................................................................... 5

Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998) ...................................................................................................... 5

P & D Consultants, Inc. v. City of Carlsbad, 190 Cal.App.4th 1332 (2010) ..................................................................................................... 5

Rosolowski v. Gunthy-Renker LLC, 230 Cal.App.4th 1403 (2014) ............................................................................................ 2, 6, 8,

Winner’s Circle of Las Vegas, Inc. v. AMI-Franchising, Inc., 916 F.Supp. 1024 (D. NV 1996) ............................................................................................... 10

Woo v. Sup. Ct. (Zaribi,) 75 Cal.App.4th 169 (1999) ......................................................................................................... 7

Statutes

28 U.S.C. Section 1447 ............................................................................................................................. 12

Business and Professions Code Section 17529.5 .......................................................................................................................... 8

Code of Civil Procedure Section 340 ................................................................................................................................. 8


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-1- CASE NO. 3:17-CV-04497-MMC FLUENT, LLC’S OPPOSITION TO PLAINTIFFS’

MOTION FOR LEAVE TO AMEND COMPLAINT

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Defendants FLUENT, LLC, served and f/k/a Fluent, Inc., REWARD ZONE USA, LLC;

REWARDSFLOW LLC; AMERICAN PRIZE CENTER, LLC; and MOHIT SINGLA

(collectively, “Fluent”) respectfully submit the following Memorandum of Points and

Authorities in Opposition to Plaintiffs’ Motion for Leave to Amend Complaint, seeking to file a

Third Amended Complaint (“TAC”).

I. INTRODUCTION/SUMMARY OF ARGUMENT

Though Plaintiffs cite a general policy of liberally granting leave to amend, the policy is

not without limits and should not control here. This action commenced almost a year and a half

ago, and the proposed amendment is intended only to avoid this Court’s jurisdiction or and

rulings on the merits. Plaintiffs fail to provide any good cause or excuse for the delay in bringing

this motion. Worst of all—the proposed amendment flouts this Court’s rulings and directives.

There is only one reason why Plaintiffs now move the Court for leave to add a non-

diverse party, specifically 404 Publishing LLC (“404 Publishing”)—they want to drag Fluent

back to state court. But Plaintiffs have known about 404 Publishing for a long time. And they

never pursued those claims, because they believed the presence of other non-diverse defendants

would help destroy diversity. Now that they have been forced to dismiss those other defendants,

they are leaning hard on this amendment because otherwise the case will proceed in this Court.1

More importantly, this Court has already twice denied leave to add defendants, including

404 Publishing. First, when it denied Plaintiffs’ last motion for leave to amend on September 22,

2017. See Dkt. No. 31 at 13. And then, on December 1, when it dismissed the Second Amended

Complaint. That Order specifically stated that—unless Plaintiffs cured the deficiencies in their

claims against Defendant Sauphtware, Inc. d/b/a Panda Mail (“Panda Mail”), “the instant action

will proceed, as presently alleged, against the remaining defendants.” See Dkt. No. 52, at 7

(emphasis added). Plaintiffs offer no reason at all why the Court should revisit and reverse itself.

On its face, Plaintiffs’ proposed amendment is also futile—the proposed claims are

premised on continuing uncured deficiencies, including Plaintiffs’ failure to comply with Rule

1 See, e.g. Dkt. No. 58. References to “Dkt. No.” unless otherwise noted hereinafter refer to docket entries in this

case, Case No. 3:17-cv-04497-MMC.


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9(b) and reliance on an exemplar email that does not violate California’s anti-spam law—at least

per this Court’s order interpreting Rosolowski v. Gunthy-Renker LLC, 230 Cal.App.4th 1403

(2014). See Dkt. No. 52, at 4-7.

Fundamentally, allowing this untimely amendment would only serve to reward Plaintiffs’

forum shopping, procedural gamesmanship, and delay tactics. It would also prejudice Fluent’s

efforts to move forward on the merits. Plaintiffs face no similar prejudice because they have

raised identical claims against 404 Publishing in another state court matter. The Court should

therefore exercise its discretion and deny Plaintiffs’ Motion for Leave to Amend Complaint.

II. STATEMENT OF FACTS/PROCEDURAL BACKGROUND

After initially being filed in state court in September 2016, this matter has been removed

twice, but Plaintiffs continue to contest jurisdiction.

On May 12, 2017, following the first timely removal, and while a motion and order to

show cause re remand was pending, Plaintiffs’ tried to add new parties to destroy diversity, but

their motions were summarily denied while the Court focused on jurisdiction as it existed at the

time of removal. See Decl. of Andrew D. Castricone, Esq. (“Castricone Decl.”), ¶6; Request for

Judicial Notice (“RJN”), ¶1, Ex. A. In response, on May 15, 2017, Plaintiffs’ counsel filed a

separate action in state court, Duncan, et al. v. Fluent, LLC, et al. (“Duncan”), SFSC Case No.

CGC-17-558932, naming the same plaintiffs and defendants they unsuccessfully tried to add to

this action, including 404 Publishing who Plaintiffs now seek leave to include here. Castricone

Decl., ¶7; RJN, ¶2, Ex. B.

On June 8, 2017, this action was remanded on very narrow issues regarding the

citizenship of two parties, but the Court expressly permitted a second removal upon Fluent’s

receipt of evidence of complete diversity. Id. at ¶10; RJN ¶3, Ex. C. Shortly after remand, on

June 26, 2017, Plaintiffs’ sought leave to amend the then operative complaint in this matter to

add 404 Publishing as a defendant. Id. at ¶11; RJN ¶4, Ex. D.

On August 7, 2017, with evidence of complete diversity, Fluent timely removed the

action to this Court where it has remained since. Id. at ¶12; Dkt. No. 12. On August 11, 2017,

2 References to “Dkt. No.” hereinafter refer to docket entries in this case, Case No. 3:17-cv-04497-MMC.


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Plaintiffs filed a Motion to Correct Names of DOE Defendants (Dkt. No 11), a Motion to

Substitute Name of Defendant (Dkt. No. 12), and a Motion for Leave to Amend the Complaint to

add 404 Publishing among other things. Dkt. No. 13. The Court summarily denied the all three

motions. Dkt. No. 31. Earlier on that same day, Panda Mail filed a Motion to Dismiss (Dkt. No.

8). Castricone Decl., ¶13.

On September 22, 2017, nearly six months ago, this Court ruled on the foregoing

motions. Castricone Decl., ¶14; Dkt. No. 31 [Sept. 22, 2017 Order]. The Court denied Plaintiffs’

request to add 404 Publishing as a defendant, holding that any further request to add defendants

must be accompanied by “facts sufficient to state a claim against each, as well as comply with

Rule 9(b) and include factual allegations from which the citizenship of any new defendant can be

determined.” Dkt. No. 31 [Sept. 22, 2017 Order], at 12:16-21.

On October 6, 2017, Plaintiffs filed a Second Amended Complaint (“SAC”). Dkt. No. 32;

Castricone Decl., ¶15. The SAC made no effort to address the Court’s admonition with respect to

404 Publishing – in fact, it does not even list 404 Publishing as a defendant. Id.

On October 20, 2017, Fluent filed an Answer to SAC. Dkt. No. 36. On that same day,

Panda Mail filed a second Motion to Dismiss. Dkt. No. 37; Castricone Decl., ¶16. This Court

granted Panda Mail’s motion on December 1, 2017. Dkt. No. 52; Castricone Decl., ¶16.

This Court’s December 1 Order was explicit—if Plaintiffs wished to cure the deficiencies

in the SAC, it had to do so by December 22, 2017. Otherwise, the action would proceed only

against the remaining defendants:

Should plaintiffs wish to file a TAC [Third Amended Complaint]

for purposes of amending their claim against Panda Mail to cure

the deficiencies identified above, plaintiffs shall file such pleading

no later than December 22, 2017. If plaintiffs do not timely file a

TAC, the instant action will proceed, as presently alleged, against

the remaining defendants.”

Id., at 7:5-8 (emphasis added).

The Order makes clear that leave to amend, if elected, was only to cure “the deficiencies

identified above,” and there was no indication that Plaintiffs could amend whatever and

whenever it liked. The Order did not grant permission to add 404 Publishing or other parties.


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Plaintiffs’ did not file a TAC on or before December 22. Castricone Decl., ¶17. Instead,

Plaintiffs chose to stipulate to Panda Mail’s dismissal. Id.; Dkt. Nos. 53-54. While Plaintiffs

previously tried to add 404 Publishing and others, they failed any further and timely intent do so

as instructed. Since they did not try to cure the identified deficiencies (against Panda Mail or

others) by December 22, Fluent naturally understood, as the Court made clear, the matter would

proceed only “against the remaining defendants.” Dkt. No. 52, at 7:8.

Fluent was thus taken aback when Plaintiffs belatedly moved to add 404 Publishing as a

party. The Court had given explicit instruction about how Plaintiffs could add 404 Publishing to

the SAC. Plaintiffs ignored those instructions—choosing instead to focus on Panda Mail. When

the Court dismissed the allegations against Panda Mail, the Court invited Plaintiffs to try to cure

those allegations. But the Court did not renew its invitation to add defendants—especially

defendants the Court had already once refused to add and whom Plaintiffs made no further effort

to join. Plaintiffs have had two opportunities and several months to add 404 Publishing as a

defendant and they chose not to. Dkt. No. 55 [Motion to Amend], at 4:12-14.

There is only one explanation for Plaintiffs’ about face—they are forum shopping. They

hope that 404 Publishing’s presence will defeat diversity and provide an opportunity for remand

so that Plaintiffs can avoid the impact of this Court’s orders. Castricone Decl., ¶18.

There is no need to guess about Plaintiffs’ motives—they stated it clearly in Duncan. The

plaintiffs in that state court action, who are represented by Plaintiffs’ counsel, filed a Case

Management Statement on November 13, 2017, asserting: “The pleadings in the companion case

are being litigated in Federal Court. If Plaintiffs’ [sic] succeed in opposing Defendant’s 12(b)(6),

they will seek to amend the complaint, add California defendants, remand the case to this court,

and consolidate this case with that case.” Id. at ¶19; RJN, ¶5, Ex. E.

Plaintiffs’ ulterior motive is further demonstrated from their allegation in their Motion for

Leave to Amend Complaint, which states that “Plaintiffs and Defendant 404 [Publishing LLC]

are in California” (Id. at ¶18; Dkt. No. 55 [Motion to Amend], at 7:27-30) and their proposed

TAC which asserts that “Plaintiffs maintain that jurisdiction is proper in California Superior

Court because all Plaintiffs are located in California, other parties (i.e. 404) who advertised in


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and a liable for the spams – and who Plaintiffs seek to add to the action – are in California.” Id.;

Dkt. No. 55, at 18, ¶33. Plaintiffs have thus admitted their intention is to move for remand and

dodge this Court.

The Court should not entertain Plaintiffs’ tactics, and it should deny the motion and allow

Fluent to defend itself here, where discovery is already underway, on the merits.

III. ARGUMENT

A motion for leave to amend complaint should be denied if it would cause prejudice to

the opposing party. See Duchrow v. Forrest, 215 Cal.App.4th 1359, 1377 (2013); Magpali v.

Farmers Group, Inc., 48 Cal.App.4th 471, 486-88 (1996); P & D Consultants, Inc. v. City of

Carlsbad, 190 Cal.App.4th 1332, 1345 (2010). And this Court has “discretion” to deny “an

attempt to join a non-diverse party” after an action has been removed on the basis of diversity.

See 28 U.S.C. § 1447(e); Newcombe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998).

The Court has twice granted leave to amend. The last time, it did so only with respect to

Plaintiffs’ claims against Panda Mail. In doing so, the Court also imposed a deadline to amend of

December 22. Dkt. No. 52, at 7. The Court did not grant leave to add other defendants. Id.

Plaintiffs’ motion is a patent effort to circumvent due process and forum shop.

A. Plaintiffs Proposed Amended Complaint Is Futile

Plaintiffs should not be permitted to add new defendants where the applicable statute of

limitations has already run and the amendment would be futile. Missouri ex rel. Koster v. Harris,

847 F.3d 646, 656 (9th Cir. 2017).

1. Plaintiffs Fail To State A Claim Against 404 Publishing That It

Advertised In The Emails In Issue

Plaintiffs have already twice amended their complaint—in fact, the Court has already

rejected one attempt to add 404 Publishing. Castricone Decl., ¶14; Dkt. No. 31 [Sept. 22, 2017

Order]. Plaintiffs’ current proposed amendment omits any specific allegations or facts with

respect to 404 Publishing—certainly nothing in accordance with the Court’s order denying the

first motion for leave to amend. Dkt. No. 31, at 9:25::10:1-3 [“plaintiffs must allege facts to

support a finding that the proposed defendants violated §17529.5; additionally, plaintiffs must


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comply with [FRCP] Rule 9(b), as . . . plaintiffs’ claim under §17529.5 sounds in fraud.”]. Nor

the motion or pleading explain why Plaintiffs ignored multiple previous opportunities to add 404

Publishing.

While the proposed amendment includes an “exemplar” email allegedly sent by 404

Publishing (Dkt. No. 55, at 6:27-28), the email does not violate the state anti-spam law, as

interpreted by the California Appellate Court in Rosolowski v. Gunthy-Renker LLC, supra, 230

Cal.App.4th 1403. The proposed complaint also fails to plead that 404 Publishing “advertised in”

a commercial email message—as this Court expressly required. Dkt. No. 52, at 2-3. This Court

has ordered Plaintiffs to allege how each defendant promoted or solicited products or services in

the emails. Dkt. No. 52, at 3. But there are no such allegations in the proposed amendment.

Plaintiffs’ proposed claims against 404 Publishing would fail as a matter of law—just

like their identical claims against Panda Mail. Dkt. No. 52. This Court dismissed Panda Mail

because Plaintiffs’ allegations failed to support a fining that Panda Mail advertised in the subject

emails and failed to attach all the emails “that constitute[] an advertisement for [Panda Mail’s]

email marketing services”. Dkt. No. 52, at 6-7. Like the dismissed allegations against Panda

Mail, the current proposed amendment includes only a single representative email (Dkt. No. 55,

at 12), and fails to address how the statement in that email—“if you wish to continue getting

special opportunities like this one, you do not need to do anything”—constitutes an

advertisement for 404 Publishing’s email publishing services.

The Court dismissed Panda Mail because Plaintiffs could not state a claim that Panda

Mail violated §17529.5 and had not complied with Rule 9(b). The Court should refuse to add 404

Publishing for the same reasons.

2. Plaintiffs’ Claims Against 404 Publishing Are Time Barred

Plaintiffs’ cause of action for violation of the state anti-spam law is governed by a one-

year statute of limitations. Internet Servs. v. Consumerbargaingiveaways, LLC, 622 F. Supp. 2d

935, 944 (ND Cal. 2009) (Code of Civil Procedure section 340(a) one-year limitations provision

for statutory penalties applies); Hypertouch, Inc. v. Azoogle.com, Inc., 386 Fed. Appx. 701, 2010

WL 2712217 (9th Cir. 2009) (same).


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Due process forbids the relation back of an amended complaint to be filed with respect to

the proposed defendants—including Doe defendants not served3—when the statute of limitations

has run. Ingram v. Sup. Ct. (Slinkard), 98 Cal.App.3d 483, 492 (1979); Woo v. Sup. Ct. (Zaribi),

75 Cal.App.4th 169, 176 (1999).

This action was brought approximately a year-and-a-half ago on September 16, 2016.

Castricone Decl., ¶4. Plaintiffs concede 404 Publishing was not a part of the original complaint,

and thus, in turn, it has not been served with the operative complaint. Dkt. No. 55, at 18, ¶29.

The proposed amendment is devoid of allegations stating when the eight allegedly improper

emails were sent by 404 Publishing. Id. at 17, ¶¶27-28. Nonetheless, it contains a screen shot of

one of the eight allegedly offending emails dated November 5, 2016—more than one year ago.

Because it appears the emails were sent more than a year ago, the statute has run, and

amendment is futile.

In sum, the Plaintiffs’ new claims against proposed new defendant 404 Publishing fail to

state a claim and are time barred in this action by the applicable one-year statute of limitations.

Permitting Plaintiffs leave to amend would simply be a reward for their gamesmanship to forum

shop and be an abuse of process.

B. Plaintiffs’ Amendment Is Untimely And Prejudices Fluent’s Ability To

Litigate In This Court Where It Has Expended Time and Resources

Plaintiffs’ attempt to amend the operative complaint is a sham because it is being brought

to defeat diversity jurisdiction and forum shop by seeking to remand this action to state court

when it should remain in federal court. Castricone Decl., ¶18. This matter has been pending for

well over a year. Id. at ¶4. The Court has already issued dispositive orders and the parties have

already begun discovery in earnest. Id.at ¶¶14, 16, 20; Dkt. Nos. 31, 52.

Fluent has had to twice remove this action, and has expended significant time and

resources on it. Six months ago, the Court denied Plaintiffs’ last attempt to add 404 Publishing as

a defendant. Dkt. Nos. 13, 31. At that time, Plaintiffs were given leave to amend their complaint

3 Plaintiffs’ proposed TAC makes clear that 404 Publishing was not a part of any prior complaint as a Doe

defendant. Dkt. No. 55, at 18, ¶29 [“404 [Publishing] was not part of the original Complaint in this Action, even as a

DOE Defendant” (emphasis in original)].


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to allege facts sufficient to state claim against 404 Publishing. Instead, they sat on their hands.

After the Court dismissed Panda Mail, it granted Plaintiffs leave to cure its allegations against

Panda Mail—but it did not invite efforts to include additional defendants. In fact, it stated that

the action would proceed only against “the remaining defendants.” Dkt. No. 52, at 7:7-8.

Allowing Plaintiffs leave to amend their complaint at this juncture would deeply

prejudice Fluent for three reasons. First, it is untimely. Second, Fluent has actively litigated this

matter since it was removed. Third, Fluent would lose the benefit of this Court’s prior

determination on the favorable application of Rosolowski v. Gunthy-Renker LLC, supra. Any

further amendment would unnecessarily delay Fluent’s ability to seek adjudication of this matter

on the merits.

1. Undue Delay in Plaintiffs’ Bringing their Motion for Leave

Plaintiffs’ proposed amendment is inexplicably tardy. This Court’s December 1, 2017,

order explicitly stated that Plaintiffs had until December 22, 2017, to file an amended complaint

or “the instant action will proceed, as presently alleged, against the remaining defendants.” Id.

(emphasis added).

Notwithstanding this Court’s guidance, Plaintiffs allowed December 22, 2017, to pass

without filing a TAC or seeking renewed leave of court to file an amended complaint. Castricone

Decl., ¶17. Plaintiffs attempt to argue that the present motion for leave to amend is timely

because the Court issued its Order on “Sauphtware Inc.’s [Panda Mail] second Motion to

Dismiss (Docket #52) just two months ago,” Plaintiffs’ counsel took time off during the

holidays, and Plaintiffs’ attorney Daniel Balsam had emergency kidney stone surgery in January

2018. Dkt. No. 55 [Motion to Amend], at 4:21-25. However, these arguments are disingenuous

and have no bearing.

First, prior to Mr. Balsam’s surgery in January 2018, this Court’s December 1 order set a

firm date of December 22, 2017, to amend the complaint. Castricone Decl., ¶ 16; Dkt. No. 52, at

7:5-8. Further, Mr. Balsam’s co-counsel—Jacob Harker—has been actively involved at every

stage of this case. Id. at ¶21. Plaintiffs’ motion does not explain why Mr. Harker could not file a

timely amendment.


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Second, Plaintiffs already missed their opportunity to try to add 404 Publishing. On

September 22, 2017, this Court denied Plaintiffs’ last motion for leave to add 404 Publishing. In

so doing, it set forth the parameters in which Plaintiff could add 404 Publishing. Id. at ¶14; Dkt.

No. 31. Plaintiffs did nothing. Instead, they amended their claims against Panda Mail. And when

the Court dismissed the claims against Panda Mail, it was very clear: Plaintiffs had until

December 22 to cure their claims against Panda Mail—otherwise the case would proceed against

only the remaining defendants. Dkt. No. 52, at 7. Plaintiffs ignored that deadline and the mandate

contained within that Order. Castricone Decl., ¶17. Allowing Plaintiffs to amend at this eleventh

hour would give sanction to further dilatory tactics.

Plaintiffs cannot seriously suggest they have been diligent. They filed a case management

statement in Duncan on November 13, 2017 stating their intention to add 404 Publishing to this

federal action in an effort to obtain a remand order. Castricone Decl., ¶19; RJN, ¶5, Ex. E.

Accordingly, Plaintiffs have contemplated bringing the instant motion for more than three

months, if not earlier. They chose instead to sit on their hands—which unduly prejudices Fluent.

2. Fluent Will Be Prejudiced By Amendment at this Juncture

Pursuant to 28 U.S.C. § 1447(e), a district court has discretion to deny joinder of

additional parties if doing so would defeat diversity of jurisdiction. Several courts have denied an

amendment destroying diversity after a case has been removed from state court. See Clinco v.

Roberts, 41 F.Supp.2d 1080, 1086 (C.D. Cal. 1999) (citing text) (“To apply the permissive

standard of Rule 15(a) in this situation would allow a plaintiff to improperly manipulate the

forum of an action . . .”); Winner’s Circle of Las Vegas, Inc. v. AMI-Franchising, Inc., 916

F.Supp. 1024, 1025(D. NV 1996). This Court should apply such reasoning and likewise deny

Plaintiffs’ motion.

Several factors are taken into account when determining if an amendment joining parties

is appropriate and not done to defeat diversity. One is the motive for joinder, i.e., whether it

appears plaintiff is seeking to join a party solely to destroy diversity of citizenship. Desert

Empire Bank v. Insurance Co. of No. America, 623 F.2d 1371, 1376-77 (9th Cir. 1980). In this

case, it is clear that Plaintiffs are attempting to add 404 Publishing in order to destroy diversity.


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Castricone Decl., ¶18.

The filings in both this case and Duncan make clear that Plaintiffs have an improper

motive. And because they can proceed against 404 Publishing in Duncan—denial of leave to

amend will not prejudice Plaintiffs at all. Dkt. No. 55, at 6:13-15 [inviting further pleading

challenges to “debate the merits or even the truth of the changes” in the Proposed TAC].

Fluent, on the other hand, has expended time and resources litigating this matter in

federal court. Castricone Decl. at ¶20. It has conducted discovery in accordance with the Federal

Rules, and Plaintiffs have responded to that discovery. Id. Plus, this Court has already made

rulings that pertain to the merits. As such, allowing leave to amend would greatly prejudice

Fluent.

IV. CONCLUSION

For the foregoing reasons, Fluent requests that the Court deny Plaintiffs’ Motion for

Leave to Amend Complaint. Plaintiffs’ blatant attempt to defeat diversity of jurisdiction and

subvert the appropriate channels for seeking redress for claims already brought in a separately

filed “mirror” lawsuit should not be permitted.

Respectfully submitted,

Dated: March 2, 2018 GORDON REES SKULLY MANSUKHANI, LLP

By

Andrew D. Castricone Justin A. Zucker

Attorneys for Defendants FLUENT, LLC. served and f/k/a FLUENT, INC.; REWARD ZONE USA, LLC; REWARDSFLOW LLC; AMERICAN PRIZE CENTER, LLC; and MOHIT SINGLA

1126421/37046437v.1


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