United States District Court, S.D. Indiana, Indianapolis Division
REPORT AND RECOMMENDATION
J. DINSMORE UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion for
Leave to Amend Complaint and Scheduling Order. [Dkt.
176.] On January 23, 2018, District Judge Tanya Walton Pratt
designated the undersigned Magistrate Judge to issue a report
and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
[Dkt. 238.] For the reasons set forth below, the Magistrate
Judge recommends Plaintiff's Motion be
DENIED. The Magistrate Judge further
recommends Plaintiff's claims be
DISMISSED pursuant to Fed.R.Civ.P. 12(h)(3)
for lack of subject matter jurisdiction.
action, Plaintiff alleges putative class action claims
against Defendants under federal anti-wiretapping laws.
Plaintiff asserts the Indianapolis Colts' mobile phone
application (the “App”) intercepts and records
users' private conversations. During the course of
discovery, however, Plaintiff determined that the version of
the App on his phone does not include the
“listening” technology at issue in the case. It
appears Plaintiff's phone, while set to automatically
update its applications, did not in fact run the update that
would have installed the technology. Consequently, Plaintiff
seeks to amend his Complaint to withdraw himself as the named
class representative and substitute a new plaintiff (Mr.
Evans), who presumably utilized the correct version of the
assert Plaintiff's Motion is procedurally defective
because Plaintiff does not have, and has never had, standing
to bring the lawsuit. Defendants urge the Court to deny
Plaintiff's Motion and dismiss Plaintiff's claims for
lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(h)(3). In the alternative, Defendants assert the Motion
should be denied as futile because discovery has demonstrated
the App never acquired the contents of oral conversations, as
required to support an interception claim under the Wiretap
characterizes this motion as a “routine substitution of
named plaintiffs” and urges the Court to “take
the most efficient path” and allow the substitution to
avoid a separate lawsuit by Mr. Evans. As the Seventh Circuit
has observed, that would have been the proper course of
action if something had happened to deprive Plaintiff of
standing after the suit was filed and it had already been
certified as a class action. See Walters v.
Edgar, 163 F.3d 430, 432 (7th Cir. 1998). Neither of
those conditions are satisfied here.
asserts he had standing to bring the lawsuit, as held by the
Court in its Entry on Defendant's Motion to Dismiss
[Dkt. 129]. But the standing issue addressed in that
Entry has no bearing on the standing issue presented now. The
“irreducible constitutional minimum” of standing
consists of three elements. The plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016),
as revised (May 24, 2016). In their Motion to
Dismiss, Defendants challenged the first element: whether
Plaintiff sufficiently pleaded an injury in fact. The Court
found Plaintiff's allegations of invasion of privacy
sufficed to have standing to assert challenges under the
Wiretap Act. [Dkt. 129 at 8-9.]
Defendants challenge the second element of standing: whether
the injury pleaded is fairly traceable to Defendants'
conduct. Plaintiff readily admits it is not. [Dkt. 177 at 1.]
Plaintiff asserts his claim is “flawed” because,
in reality, his phone did not have the version of the App
that contained the “listening technology” that is
the heart of this lawsuit. Plaintiff's claim is more than
flawed. It is not simply a matter of Plaintiff now being
unable to prove injury, as Plaintiff argues. Plaintiff could
not have been injured by Defendants because he never
possessed the technology that allegedly causes the injury.
Therefore, Plaintiff had no standing to bring his claim
against Defendants, regardless of when he realized that fact.
As Plaintiff lacks standing, and the class is not certified
so there are no other party plaintiffs to step in, federal
jurisdiction has not attached. See Walters,
163 F.3d at 432-433.
parties discuss at length whether Plaintiff has established
the amendment would be proper pursuant to Rule 15 or Rule 16.
These arguments are moot. Generally, an amendment under Rule
15 or Rule 16 cannot cure a lack of jurisdiction because
“a plaintiff may not create jurisdiction by amendment
where none exists.” In re Enron Corp. Sec.,
Derivative & ERISA Litig., 279 F.R.D. 395, 411 (S.D.
Tex. 2011). As Plaintiff lacks standing to assert his claim,
he also lacks standing to amend the complaint and substitute
a new plaintiff.
Court rejects Plaintiff's argument that it should
“take the most efficient path to [the] inevitable
result” that Mr. Evans will be a named plaintiff in a
putative class action against Defendants. Although judicial
economy and docket management drive many decisions at the
district court level, they do not do so by manufacturing
subject matter jurisdiction where none exists. Rule 12(h)(3)
provides that, “[i]f the court determines at any time
that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed.R.Civ.P.
12(h)(3) (emphasis added). Consequently, the Magistrate Judge
recommends that Plaintiffs Motion be DENIED
and Plaintiffs claims be
on the foregoing, the Magistrate Judge recommends that
Plaintiffs Motion for Leave to Amend Complaint and
Scheduling Order [Dkt. 176] be DENIED
and that Plaintiffs claims be DISMISSED
pursuant to Fed.R.Civ.P. 12(h)(3) for lack of subject matter
objections to the Magistrate Judge's Report and
Recommendation shall be filed with the Clerk in accordance
with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), and
failure to timely file objections within fourteen days after
service shall constitute ...