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Mitchell v. Wells Fargo Bank

United States District Court, D. Utah, Central Division

December 21, 2018

LAWRENCE J. MITCHELL, et. al., Plaintiffs,
v.
WELLS FARGO BANK, et. al., Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' 12(b)(1) MOTION AND GRANTING, IN PART, DEFENDANTS' 12(b)(6) MOTION

          CLARK WADDOUPS UNITED STATES DISTRICT COURT JUDGE

         Introduction

         Before the court is Wells Fargo Bank, N.A. and Wells Fargo & Company's Motion to Dismiss Plaintiffs' Third Amended Complaint. Defendants argue that a majority of Plaintiffs fail to allege standing and move to dismiss under Rule 12(b)(1). Defendants also move to dismiss each of the Plaintiffs' fifteen claims under Rule 12(b)(6) for failure to state a claim. After careful consideration of the arguments set forth in the briefs and oral argument, the court now GRANTS Defendants' 12(b)(1) Motion. And, as explained below, the court GRANTS in part, and DENIES in part, Defendants' 12(b)(6) Motion. The conclusion the court was required to reach based on the pleadings and arguments made in this case should not be read as an affirmation that Wells Fargo's conduct was appropriate or correct. Indeed, the facts presented indicate a massive system wide failure by the bank. Many of the claims here, however, fail to meet pleading requirements and must be dismissed as discussed below.

         Background

         In this action, Plaintiffs allege that Wells Fargo employees used customers' confidential information to open fraudulent accounts in the customers' names to meet sales goals, and that Wells Fargo encouraged, knew of, or should have known of this practice. Plaintiffs nationwide have made very similar allegations against Wells Fargo, and have filed suit in other districts. See In re Wells Fargo Fraudulent Account Opening Litig., 282 F.Supp.3d 1360, 1361 (U.S. Jud. Pan. Mult. Lit. 2017).[1] Of those actions filed in other districts, Jabbari v. Wells Fargo Bank, N.A., No. 3:15-cv-2159-VC (N.D. Cal.) is the most relevant to this case. Because this case is so closely tied to Jabbari, the court discusses the history of Jabbari where relevant.

         The Jabbari plaintiffs filed their action against Wells Fargo on May 13, 2015, Jabbari, No. 3:15-cv-2159 (N.D. Cal. Oct. 20, 2017), (ECF No. 1), making it the first-filed putative class action. Plaintiffs in this case filed this action on September 16, 2016. (ECF No. 2.) On November 3, 2016, Plaintiffs filed a Second Amended Complaint. (ECF No. 15.)[2] Sometime around February 16, 2017, this court received notice that the Judicial Panel on Multidistrict Litigation (“JPML”) would hear argument on whether to create an MDL action from the several cases filed against Wells Fargo related to fraudulent account openings. (See ECF No. 51.) On February 28, 2017, this court stayed the case pending the JPML's decision. (ECF No. 54.)

         On March 28, 2017, the parties in Jabbari filed a Joint Notice of Settlement. Jabbari, No. 3:15-cv-2159 (N.D. Cal. Oct. 20, 2017), (ECF No. 96.) On April 5, 2017, the JPML determined it would not order centralization due to the nationwide class settlement-in-principle reached by the parties in Jabbari. See In re Wells Fargo Fraudulent Account Opening Litig., 282 F.Supp.3d at 1361. On that same day, Plaintiffs moved to lift the stay in this case. (ECF No. 55.) On April 13, 2017, this court heard argument from the parties regarding the propriety of lifting the stay in light of the pending Jabbari settlement. (See ECF Nos. 58, 61.) The court ultimately lifted the stay. (ECF No. 60.) On June 7, 2017, the court held a hearing during which the court granted Plaintiffs' oral motion to amend their complaint. (ECF No. 67.) Plaintiffs filed their currently operative Third Amended Complaint on June 27, 2017. (ECF No. 69.) The Third Amended Complaint initially listed 76 named Plaintiffs, but through a series of voluntary dismissals, was eventually reduced to 57.[3] (See ECF No. 69.)

         On July 8, 2017, the court in Jabbari entered an order preliminarily approving the settlement in that case. Jabbari, No. 3:15-cv-2159 (N.D. Cal. July 8, 2017), (ECF No. 165.) That order provided that the “Settlement Class Members who do not opt out agree to release all claims that could have been asserted, or that arise out of the same transactions or occurrences as the claims against Wells Fargo entities that were or could have been asserted in [the Jabbari] action.” Jabbari, No. 3:15-cv-2159, 2017 WL 5157608, at *5 (N.D. Cal. July 8, 2017). Later, the court in Jabbari entered an order setting the opt out deadline for February 19, 2018. Jabbari, No. 3:15-cv-2159 (N.D. Cal. Oct. 20, 2017), (ECF No. 176 at 4.) The opt out deadline is relevant here. Those who did not opt out of the Jabbari settlement are unable to pursue their claims in this case.

         On January 30, 2018, Defendants filed their Motion to Dismiss the Third Amended Complaint for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). (ECF No. 144.) On February 12, 2018, Plaintiffs filed their Response. (ECF No. 149.) On February 26, 2018, Defendants filed their Reply. (ECF No. 151.)

         On June 14, 2018, the court in Jabbari entered an order granting final approval of the class action settlement. Jabbari, No. 3:15-cv-2159 (N.D. Cal. June 14, 2017), (ECF No. 271.) Attached as “Exhibit A” to that order was a list of those individuals who had opted out of the Jabbari settlement. Jabbari, No. 3:15-cv-2159 (N.D. Cal. June 14, 2017), (ECF No. 271 at 16- 27.) That list contained the names of 967 individuals. (See Jabbari, No. 3:15-cv-2159 (N.D. Cal. June 14, 2017), (ECF No. 271 at 27.)

         The Jabbari court “approve[d] that list, including those who filed untimely exclusions, as constituting the list of all Persons who have submitted timely requests for exclusion from the Settlement Class.” Jabbari, No. 3:15-cv-2159 (N.D. Cal. June 14, 2017), (ECF No. 271 at 8.) The order also included “Exhibit B, ” a list of those individuals who “filed both a claim and an exclusion, ” and for whom the court provided “shall not be excluded unless they subsequently communicate their intent . . . to withdraw their claim and not participate in the Settlement on or before July 7, 2018.” Jabbari, No. 3:15-cv-2159 (N.D. Cal. June 14, 2017), (ECF No. 271 at 9.)

         This court heard oral argument on Defendants' Motion to Dismiss on June 20, 2018. (ECF No. 159.) On July 31, 2018, the Plaintiffs filed a “Request for the Court to take Judicial Notice.” (ECF No. 160.) In this filing, Plaintiffs requested that “the Court consider all proposed Plaintiffs as members of a potential class action” because of appeals of the Jabbari case. (See ECF No. 160 at 2.) Plaintiffs included no authority in support of their request. On August 7, 2018 the defendants filed an Objection to Plaintiffs' request, arguing that “Plaintiffs' submission is not altogether clear with respect to the implications of the appeals in this action . . . .” (ECF No. 161 at 2.) The court agrees and declines Plaintiffs' request.

         ANALYSIS

         Remaining Plaintiffs

         As explained above, the Third Amended Complaint initially listed 76 named Plaintiffs, but through a series of voluntary dismissals, the number was eventually reduced to 57. (See ECF Nos. 69, 81, 83-85, & 141.) And, as also explained above, only those Plaintiffs who opted out of the Jabbari settlement can proceed in this case.

         The court requested that Plaintiffs' attorneys provide a list of those Plaintiffs who opted out of the Jabbari settlement. (See ECF No. 156.) Plaintiffs' counsel provided a list, representing that 37 “individuals have withdrawn from the Jabbari litigation.” (ECF No. 157 at 2-3.) As explained below, only 33 individuals involved in this case opted out of the Jabbari settlement.

         Four individuals on the Plaintiffs' list of 37 should be removed-“Nedelka Martinsen, ” “Adrienne Thompson, ” “Concepcion Powell, ” and “Charles Jones.” First, as Defendants point out, “Number 33” on that list, “Nedelka Martinsen, ” “was left off the Third Amended Complaint.” (Tr. 18: 25; also, compare ECF No. 157 at 3 with ECF No. 69.) Without “Nedelka Martinsen, ” the number of Plaintiffs on Plaintiffs' counsel's list becomes 36.

         Second, as the Defendants point out, Plaintiffs mistakenly “repeat” “Number 31” on their list, “Adrian Thompson, ” “under a different spelling”-“Adrienne Thompson.” (See Tr. 18: 15- 19 also, compare ECF No. 157 at 3 with ECF No. 69.) The court assumes that the person listed in the Jabbari court's Exhibit A as “Adrienne Thompson” is the “Adrian Thompson” from this case. Even under that assumption, the court must remove Plaintiffs' “Number 12.” This brings the list's total to 35.

         Third, Defendants also pointed out at oral argument that “Number 32” on Plaintiffs' list, “Concepcion Powell, ” is not listed on Jabbari's “Exhibit A” as a confirmed opt out, or Exhibit B as a possible opt out. (See Tr. 18: 22-24.) At oral argument, Plaintiffs did not respond to Defendants' argument on this point. The court has independently confirmed that no one named “Concepcion Powell” is listed on the Jabbari court's Exhibit A or Exhibit B. See Jabbari, No. 3:15-cv-2159 (N.D. Cal. Oct. 20, 2017), (ECF No. 271 at 16-30.) Because the Plaintiffs did not respond to Defendants' argument, and because the court has confirmed that no one named “Concepcion Powell” is listed as having opted out, the court assumes Concepcion Powell did not opt out of the Jabbari settlement. Plaintiffs' list is reduced to 34.

         Fourth, Defendants point out that “Charles Jones” “is the person who the [Plaintiffs'] parenthetical states” “does not appear on [the Jabarri court's] opt out list Exhibit A, ” but for whom Plaintiffs' counsel “attached what appears to be a copy of an opt out form.” (Tr. 19: 7-9.) Defendants' counsel argued that Charles Jones' opt out form “is not an effective opt out because it was not sent to the settlement administrator” in Jabarri. (See Tr. 19: 16-17.) Plaintiffs' counsel did not respond to this argument. Because Plaintiffs counsel did not respond to this argument, and because “Charles Jones” is not a name that appears on the Jabbari court's Exhibit A, the court assumes Charles Jones did not opt out of the Jabbari settlement. Plaintiffs' list is reduced to 33 individuals.

         The court now turns to 3 individuals that the Plaintiffs acknowledged “filed [an] opt-out and submitted [a] claim form.” (ECF No. 157 at 3.) These individuals are “Reza Kamali, ” “Ralph McCoy, ” and “Travis Ashby.” (See ECF No. 157 at 3.) As explained above, the court in Jabbari provided that those Plaintiffs who “filed both a claim and an exclusion, ” “shall not be excluded unless they subsequently communicate their intent . . . to withdraw their claim and not participate in the Settlement on or before July 7, 2018.” Jabbari, No. 3:15-cv-2159 (N.D. Cal. June 14, 2017), (ECF No. 271 at 9.) For the purpose of resolving the present Motion, this court assumes that those three Plaintiffs communicated their intent to withdraw their claim. The court therefore assumes that they have opted out of the Jabbari settlement. The court proceeds under the assumption that there are 33 Plaintiffs remaining in this case who opted out of the Jabarri settlement.

         Article III Standing

         As explained above, after the Jabarri settlement only 33 Plaintiffs remain. Defendants wrote their Motion to Dismiss prior to the settlement. At that time there were 57 Plaintiffs. In their Motion to Dismiss for lack of standing, Defendants argued that “[t]he majority of the Plaintiffs-38 of the remaining 57 Plaintiffs . . . do not allege any unauthorized accounts were ever opened in the names, that their information was ever improperly used or accessed by any Wells Fargo employee, or that they were subject to any improper sales practice.” (ECF No. 144 at 24.) Defendants refer to these 38 Plaintiffs as the “Bystander Plaintiffs.” (ECF No. 144 at 24.) The court will refer to those individuals who did allege an unauthorized account was opened in their name as “Wrongful Account Plaintiffs.” Since many of the 57 remaining Plaintiffs (those Plaintiffs named in the Third Amended Complaint who did not file a voluntary dismissal) have not opted out of the Jabbari settlement, the number of Bystander Plaintiffs is no longer 38.

         At oral argument, Defendants' counsel stated that 20 Bystander Plaintiffs have opted out of the Jabbari settlement. (See Tr. 17: 14-15 (“If you look at those 33 opt outs, of those 33 opt outs 20 are bystander plaintiffs, or bystander plaintiffs as we define the term, meaning they did not allege an unauthorized account was opened in their name.”).) But after reviewing the Third Amended Complaint, the court finds that there are 25 Bystander Plaintiffs and eight Wrongful Account Plaintiffs.

Plaintiff's Name

Bystander

Wrongful Account

1. Lawrence Mitchell

Bystander (TAC ¶¶ 321-25)

2. Kay Mitchell

Bystander (TAC ¶¶ 316-20)

3. Matthew Bishop

Bystander (TAC ¶¶ 151-58)

4. Tracy Kilgore

Bystander (TAC ¶¶ 459-460).

5. Jennifer Zeleny

Bystander (TAC ¶¶ 450-454)

6. Joseph Steele

Bystander (TAC ¶¶ 383-87)

7. April Thomas

Bystander (See TAC ¶¶ 414-20. (April Thomas does not allege that an unauthorized account was opened in her name, only that “a credit inquiry was made by Wells Fargo.”).)

8. Patricia Rivas

Wrongful Account (TAC ¶181 (“Plaintiff Patricia [Rivas] contends that a credit card was opened in her name without her authorization . . . .”).)

9. Andrew Gorayeb

Wrongful Account (TAC ¶ 261 (“Plaintiff Andrew Gorayeb indicates that Defendants opened up an investment account without his authorization.”).)

10. Barbara Shadoan

Wrongful Account (TAC ¶ 376 “Plaintiff Barbara Shadoan asserts that she was told that if she didn't open up other accounts, she would be charged additional fees.”).)

11. Eric Talaska

Wrongful Account (TAC ¶ 405 (“Plaintiff Eric Talaska asserts that he made several in person visits and phone calls relating to the fraudulent accounts which were opened up in his name.”).)

12. Scott Westin

Bystander (TAC ¶¶ 426-31)

13. Brent Miller

Bystander (TAC ¶¶ 464-66)

14. Aaron Brodie

Wrongful Account (TAC ¶169 (“Plaintiff Aaron Brodie contends that at the time of account opening, a credit card was opened without his consent for overdraft protection.”).)

15. Lisa Stern

Bystander (TAC ¶¶ 388-93)

16. Erika Jones

Bystander (TAC ¶¶ 281-85)

17. Robert Moyer

Bystander (TAC ¶¶ 326-30)

18. Kenneth Gregory

Bystander (TAC ¶¶ 263-67)

19. Aaron Hands

Bystander (TAC ¶¶ 268-72)

20. Matthew Gragg

Bystander (TAC ¶¶ 482-89)

21. Jeffery Taylor

Wrongful Account (TAC ¶ 413 (“Plaintiff

Jeffery Taylor contends that during the middle of the interview, Defendants took his personal information and opened up an account without his authorization . . . .”).)

22. Zachary

Christensen

Bystander (TAC ¶¶ 195-99)

23. David Self

Bystander (TAC ¶¶ 365-69)

24. Donald Black

Bystander (TAC ¶¶ 159-63)

25. Carina L. Rhea

Bystander (TAC ¶¶ 360-64)

26. Kim Weston

Bystander (TAC ¶¶ 440-44)

27. Cameron Casey

Bystander (TAC ¶¶ 189-94)

28. Glenn

Gilleshammer

Wrongful Account (TAC ¶246 (“Plaintiff Glenn Gilleshammer contends that Wells Fargo opened up a new credit card, which was not authorized, and closed.”).)

29. Gloria Pledger

Wrongful Account (TAC ¶342 (“Plaintiff Gloria Pledger asserts that she received a credit card following this visit, which she had not applied for.”).)

30. Adrian Thompson

Bystander (TAC ¶¶ 569-573)

31. Reza Kamali

Bystander (TAC ¶¶ 286-90)

32. Ralph McCoy

Bystander (TAC ¶¶ 311-15)

33. Travis Ashby

Bystander (TAC ¶¶ 130-35)

         Defendants argue that the court “should dismiss the [Bystander Plaintiffs'] claims for failure to allege standing” because they “do not allege any unauthorized account or improper sales practice in relation to them, and instead allege only that Wells Fargo did not tell them this was happening to other people.” (ECF No. 144 at 27-28.) That is, the Bystander Plaintiffs do not “come close to alleging a concrete and particularized injury.” (ECF No. 144 at 28.) The court agrees.

         The federal judicial power extends only to “cases” and “controversies.” U.S. Const. Art. III. “For a case or controversy to be justiciable, it must involve ‘questions presented in an adversary context and capable of resolution through the judicial process.'” Petrella v. Brownback, 697 F.3d 1285, 1292-93 (10th Cir. 2012) (quoting Massachusetts v. E.P.A., 549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007)). “The three requirements of Article III standing-injury-in-fact, causation, and redressability-ensure that the parties to any litigation have ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.'” Id. (citing Massachusetts, 549 U.S. at 517). “The fact that a suit may be a class action adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured . . . .” Gratz v. Bollinger, 539 U.S. 244, 289, 123 S.Ct. 2411, 2438, 156 L.Ed.2d 257 (2003). Indeed, “a named plaintiff must possess standing as to each individual claim asserted in a complaint.” Donelson v. United States Through Dep't of the Interior, 730 Fed.Appx. 597, 601 (10th Cir. 2018) It is Plaintiffs' burden to demonstrate standing. See Petrella, 697 F.3d at 1293.

         Defendants bring their first Motion under rule 12(b)(1). (See ECF No. 144 at 27.) “Motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may take one of two forms.” United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) (citing Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995). “First, a party may make a facial challenge to the plaintiff's allegations concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint.” Id. (citation omitted). “In addressing a facial attack, the district court must accept the allegations in the complaint as true.” Id. “Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Id. (citation and internal quotation marks omitted). “In addressing a factual attack, the court does not presume the truthfulness of the complaint's factual allegations, but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. (internal quotation marks omitted) (citation omitted). Because the court “construe[s] the [Defendants'] Rule 12(b)(1) motion to dismiss for lack of standing to be a facial attack on the complaint, rather than a factual one, ” it accepts Plaintiffs' “allegations of material facts as true and construe[s] the complaint in favor of” the Plaintiffs. Id.

         Plaintiffs' response to Defendants' argument is that the Bystander Plaintiffs have alleged that their identities were stolen, but that Plaintiffs cannot know which of the Bystander Plaintiffs had unauthorized accounts opened in their names because Defendants have not disclosed that information. (See ECF No. 149 at 16 (“For [the Bystander Plaintiffs], they allege that their identities were stolen, but because of Defendants' practices of burying the information, are unable to point to a specific account number that was fraudulently opened.”) (emphasis added)).) Plaintiffs' response is directly contrary to Defendants' argument that the Bystander Plaintiffs have “not allege[d] any unauthorized account or improper sales practice in relation to them . . . .” (ECF No. 144 at 27-28.) The question for the court is therefore whether the Bystander Plaintiffs sufficiently alleged an injury in fact.

         Even after construing the Third Amended Complaint in Plaintiffs' favor, the court concludes that the Bystander Plaintiffs have not sufficiently alleged an injury in fact. In paragraphs 125-581 of the Third Amended Complaint, the individual plaintiffs make factual allegations regarding their specific Wells Fargo accounts. (See TAC ¶¶ 125-581, ECF No. 69 at 35-90). Within this portion of the Third Amended Complaint, the Bystander Plaintiffs do not allege any unauthorized accounts were opened in their names. (See TAC ¶¶ 125-581, ECF No. 69 at 35-90). Nor do they allege that their identities were stolen. (See TAC ¶¶ 125-581, ECF No. 69 at 35-90). Within this portion of the Third Amended Complaint, the Bystander Plaintiffs only allege that they would not have opened Wells Fargo accounts if the Wells Fargo employees who helped them open the accounts had told them about the ongoing fraud. (See TAC ¶¶ 125-581, ECF No. 69 at 35-90). They do not allege any injury from opening the accounts, which apparently performed exactly as Plaintiffs expected and intended. Plaintiffs' argument appears to be they would not have done business with Wells Fargo if they had known about the unauthorized accounts opened for other customers, but have suffered no injury from the accounts they did open. The court agrees with the reasoning of those cases cited by Defendants that “[t]he ‘would not have shopped' theory fails to establish injury for purposes of standing.” See Carlsen v. GameStop, Inc., 112 F.Supp.3d 855, 865 (D. Minn. 2015), aff'd on other grounds, 833 F.3d 903 (8th Cir. 2016).

         Admittedly, the Plaintiffs did allege generally, in another portion of the Third Amended Complaint, that “Plaintiffs . . . suffered actual identity theft as well as damages in [various] form[s] . . . .” (TAC ¶ 629, ECF No. 69 at 107.) And Plaintiffs did generally allege that “Defendant used Plaintiffs' confidential information to open credit card accounts, savings accounts, loans, or other ‘services or products,' without Plaintiffs' knowledge or consent.” (See TAC ¶ 657, ECF No. 69 at 114.) But even after construing the Third Amended Complaint in Plaintiffs' favor, the court cannot conclude that the Bystander Plaintiffs sufficiently alleged an injury because, without specific facts, these are conclusory statements that the court must disregard. In order to meet their burden, Plaintiffs must “clearly allege facts demonstrating” “an injury in fact.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest' that is ‘concrete and particularized' and “actual or imminent, not conjectural or hypothetical.” Id. (citation omitted). The Bystander Plaintiffs simply did not allege any concrete and particularized injury. An examination of the entire Third Amended Complaint reveals that any assertion to the contrary is simply not substantiated.[4] Even after construing the Third Amended Complaint in Plaintiffs' favor, the court cannot conclude that the general allegations-that Defendants opened unauthorized accounts in Plaintiffs' names-apply to all Plaintiffs when, individually, the “Bystander Plaintiffs” did not make those same allegations.

         For these reasons, the Defendants' Rule 12(b)(1) Motion to Dismiss the 25 Bystander Plaintiffs' Claims is GRANTED. Only the eight Wrongful Account Plaintiffs remain.

         Statutory Jurisdiction

         “Federal courts are courts of limited jurisdiction and must have a statutory basis for their jurisdiction.” Dutcher v. Matheson, 840 F.3d 1183, 1189 (10th Cir. 2016). (internal quotation marks omitted) (citation omitted). This court “presume[s] no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction that jurisdiction exists; that showing must be made by a preponderance of the evidence.” Id.

         In the Third Amended Complaint, Plaintiffs allege that “[t]his Court has original jurisdiction pursuant to 28 U.S.C. §1332(d)(2).” (TAC ¶ 20, ECF No. 69 at 5.) 28 U.S.C. §1332(d)(2) is known as the Class Action Fairness Act (CAFA). See Speed v. JMA Energy Co., LLC, 872 F.3d 1122, 1125 (10th Cir. 2017). “Under CAFA, a federal district court has subject matter jurisdiction ‘over class actions involving [1] at least 100 members and [2] over $5 million in controversy when [3] minimal diversity is met (between at least one defendant and one plaintiff-class member).'” Dutcher, 840 F.3d at 1190 (quoting Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1243 (10th Cir. 2009)).

         There are not sufficient facts pleaded for the court to conclude that it has jurisdiction under § 1332(d). After dismissing the 25 Bystander Plaintiffs, only eight Plaintiffs remain. There is no factual basis from the Third Amended Complaint from which the court can conclude or reasonably infer that this class action will involve at least 100 members. First, the pool of potential plaintiffs has shrunk considerably after the court in Jabbari granted final approval of the class action settlement. The list of those individuals who the Jabbari court “approve[d] . . . as constituting the list of all Persons who have submitted timely requests for exclusion from the Settlement Class” only contains 967 names. See Jabbari, No. 3:15-cv-2159 (N.D. Cal. June 14, 2017), (ECF No. 271 at 27) (emphasis added)). Plaintiffs' counsel conceded at oral argument that he did not know how many of those 967 individuals would be considered Bystander Plaintiffs.[5] This is important. If those individuals are Bystander Plaintiffs, they would not be able to join this class action, as they would lack standing. Plaintiffs' counsel did not provide any convincing argument for this court to conclude that this class action would exceed 100 members. And the court is persuaded by Defendants' argument that there is reason to be skeptical that those individuals who opted out of one Settlement Class would be eager to join another.

         Moreover, after carefully reviewing the Third Amended Complaint and the parties' pleadings related to the instant Motion to Dismiss, the court again finds there are not sufficient pleaded facts to conclude or reasonably infer that the amount in controversy will exceed $5, 000, 000. The alleged damages of the remaining Plaintiffs are minor and do not come close to $5, 000, 000. Put simply, Plaintiffs, who bear the burden, have not made an adequate showing that federal jurisdiction exists under § 1332(d). The court now considers whether there is a different statutory basis for subject matter jurisdiction.

         At oral argument, counsel for Plaintiffs initially argued that the court may have diversity jurisdiction under 28 U.S.C. § 1332(a). (See Tr. 29: 2-3.) After conferring with co-counsel, Plaintiffs' attorney then conceded that diversity of citizenship was lacking. (See Tr. 29: 16-17.) The court now considers whether federal question jurisdiction exists under 28 U.S.C. § 1331.

         Plaintiffs did not specifically allege federal question jurisdiction under the “Jurisdiction and Venue” portion of the Third Amended Complaint. (See TAC ¶ 20-23, ECF No. 69 at 5.) But “[a] plaintiff properly invokes § 1331 jurisdiction when she pleads a colorable claim ‘arising under” the Federal Constitution or laws.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). “Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 1010, 140 L.Ed.2d 210 (1998). “When applying this standard, [the Tenth Circuit] [has] explained that ‘the complaint must identify the statutory . . . provision under which the claim arises, and allege sufficient facts to show that the case is one arising under federal law.” Davison v. Grant Thornton LLP, 582 Fed.Appx. 773, 775 (10th Cir. 2014).

         This court, applying this standard, concludes that dismissal for lack of subject-matter jurisdiction is not appropriate in this case. Plaintiffs have pleaded claims under the Stored Communications Act, 18 U.S.C. § 2702(a)(1); the Fair Credit Reporting Act, 15 U.S.C. § 1681; the Bank Holding Co. Act, 12 U.S.C. § 1972; and the Racketeer Influenced Corrupt Organizations Act, 15 U.S.C. § 1972. Plaintiffs have identified the statutory provisions and alleged facts showing that the case is one arising under federal law. The court therefore has federal question jurisdiction to hear Plaintiffs' claims arising under federal law. The Court has supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.[6]

         12(b)(6) ...


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