United States District Court, D. Montana, Great Falls Division
MELISSA HILL, individually and on behalf of all others similarly situated, Plaintiff,
LLR, INC. d/b/a LuLaRoe, and LULAROE, INC., Defendants.
Morris United States District Court Judge
States Magistrate Judge Jeremiah C. Lynch entered Findings
and Recommendations on Defendants LLR, Inc. and LuLaRoe, LLC
(“LLR”) Motion to Dismiss and Motion to Strike
Class Allegations on March 8, 2019. (Doc. 50.) Judge Lynch
recommended that the Court grant LLR's motion to dismiss
as to Hill's claim for injunctive relief. Id. at
36. Judge Lynch further recommended that the Court deny
LLR's motion to dismiss as to Hill's claims arising
under the Montana Consumer Protection Act
(“MCPA”), deny LLR's motion to dismiss for
failure to state a claim, and deny LLR's motion to strike
class allegations. Id.
timely filed objections to Judge Lynch's Findings and
Recommendations on March 22, 2019. (Doc. 52.) Because the
parties are familiar with the facts, the Court will not
recite them here.
Court reviews de novo Findings and Recommendations to which a
party timely objects. 28 U.S.C. § 636(b)(1). “A
party makes a proper objection by identifying the parts of
the magistrate's disposition that the party finds
objectionable, and presenting legal argument and supporting
authority, such that the district court is able to identify
the issues and the reasons supporting a contrary
result.” Montana Shooting Sports Ass'n v.
Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010)
(citation omitted). The Court reviews for clear error
findings and recommendations to which no party objects.
McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
party's objections constitute perfunctory responses
argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original
response the Court likewise will review the applicable
portions of the findings and recommendations for clear error.
Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont.
Feb. 21, 2014) (internal citations omitted). Clear error
exists if the Court is left with a “definite and firm
conviction that a mistake has been committed.”
United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000) (citations omitted).
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Navarro v. Block, 250
F.3d 729, 732 (9th Cir. 2001). The Court “must take all
allegations of material fact as true and construe them in the
light most favorable to the nonmoving party” when
evaluating a Rule 12(b)(6) motion. Kwan v. Sanmedica
Int'l, 854 F.3d 1088, 1096 (9th Cir. 2017) (quoting
Turner v. City & County of San Francisco, 788
F.3d 1206, 1210 (9th Cir. 2015)). The complaint must allege
sufficient facts to state a plausible claim for relief to
survive a motion to dismiss. Taylor v. Yee, 780 F.3d
928, 935 (9th Cir. 2015).
courts generally view “with disfavor” Rule
12(b)(6) dismissals. Rennie & Laughlin, Inc. v.
Chrysler Corp., 242 F.3d 208, 213 (9th Cir. 1957).
“A case should be tried on the proofs rather than the
pleadings.” Id. The Court may consider
documents “whose contents are alleged in the complaint
and whose authenticity no party questions, but which are not
physically attached to the [plaintiff's] pleading.”
Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994).
submitted four objections to Judge Lynch's Findings and
Recommendations. (Doc. 52 at 7-36.) LLR contends (1) that the
Court should enforce the MCPA's prohibition on class
action lawsuits; (2) that Hill does not possess Article III
standing; (3) that Hill also does not possess standing under
the MCPA; and (4) that Judge Johnston should have specified
in his Findings and Recommendations that LLR's motion to
strike be denied without prejudice. Id. The Court
will address each objection in turn.
MCPA's Prohibition on Class Action Lawsuits
argued in its motion to dismiss that Hill's MCPA claim
should be dismissed as the MCPA expressly prohibits class
actions. (Doc. 20 at 32.) (citation omitted). LLR recognized
that this Court had concluded previously that Federal Rule of
Civil Procedure 23 preempted the MCPA's class action ban
in Wittman v. CB1, Inc., 2016 WL 3093427 (D. Mont.
June 1, 2016). LLR nonetheless requested that this Court
abandon its conclusion in Wittman insofar as it
applies to the instant action in light of both the different
procedural posture of the instant matter and the Ninth
Circuit's recent decision in Makaeff v. Trump Univ.,
LLC, 736 F.3d 1180 (9th Cir. 2013). Id. at 32,
Lynch, after considering LLR's argument, and after
reviewing the various district court cases LLR cited to in
support of its motion to dismiss brief, concluded that
“Wittman remains good law.” (Doc. 50 at
29.) Judge Lynch ultimately determined that this Court's
decision in Wittman disposes of LLR's argument,
and that the MCPA's prohibition on class actions fails to
apply to the instant litigation. Id. LLR objects to
Judge Lynch's determination and asks this Court to again
reconsider its Wittman decision. Id. LLR
specifically requests that this Court review de novo the
issue of whether Rule 23 ...