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finding that allegations based on information and belief satisfied Rule 9(b) where plaintiffs “only use information and belief pleading” as to one group of allegations and “[s]uch facts are not readily available to plaintiffs prior to discovery”
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Case No. 4:22-cv-00859-YGR
2022-10-07
Anthony RAMIREZ, Mynor Villatoro Aldana, and Janet Hobson, on behalf of themselves and those similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant.
Annick Marie Persinger, Tycko and Zavareei LLP, Oakland, CA, Hassan Ali Zavareei, Andrea R. Gold, Pro Hac Vice, Glenn Chappell, Pro Hac Vice, Shana Khader, Pro Hac Vice, Lauren Kuhlik, Pro Hac Vice, Tycko & Zavareei LLP, Washington, DC, for Plaintiff Anthony Ramirez. Shana Khader, Pro Hac Vice, Hassan Ali Zavareei, Tycko & Zavareei LLP, Washington, DC, for Plaintiffs Janet Hobson, Mynor Villatoro Aldana. Elizabeth Lemond McKeen, Ashley Marie Pavel, O'Melveny & Myers LLP, Newport Beach, CA, William Ka Hing Pao, O'Melveny and Myers LLP, Los Angeles, CA, for Defendant.
Annick Marie Persinger, Tycko and Zavareei LLP, Oakland, CA, Hassan Ali Zavareei, Andrea R. Gold, Pro Hac Vice, Glenn Chappell, Pro Hac Vice, Shana Khader, Pro Hac Vice, Lauren Kuhlik, Pro Hac Vice, Tycko & Zavareei LLP, Washington, DC, for Plaintiff Anthony Ramirez. Shana Khader, Pro Hac Vice, Hassan Ali Zavareei, Tycko & Zavareei LLP, Washington, DC, for Plaintiffs Janet Hobson, Mynor Villatoro Aldana. Elizabeth Lemond McKeen, Ashley Marie Pavel, O'Melveny & Myers LLP, Newport Beach, CA, William Ka Hing Pao, O'Melveny and Myers LLP, Los Angeles, CA, for Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Dkt. No.: 43 Yvonne Gonzalez Rogers, United States District Judge
Pending before the Court is defendant Bank of America North America's ("BANA") motion to dismiss the First Amended Complaint. (Dkt. No. 43.) On June 15, 2022, this Court granted defendant's motion to dismiss the initial complaint. (Dkt. No. 36.) The First Amended Complaint ("FAC") includes new plaintiffs, factual allegations, and theories of liability. It alleges variations of the unfair competition and unjust enrichment claims this Court previously dismissed with leave to amend, as well as a new claim for violation of the New Jersey Unfair Trade Practices Law, N.J. Stat. Ann. §§ 56:8-1 et seq. For the reasons set forth herein, the motion is DENIED as it rests largely on a regurgitation of plaintiff's former theory and failed to meet its burden with respect to the operative complaint.
The Court dismissed plaintiffs' breach of the covenant of good faith and fair dealing claim with prejudice and dismissed plaintiffs' claims under the California Unfair Competition Law ("UCL," Cal. Bus. & Prof. Code § 17200 et seq.) and the Texas Deceptive Trade Practices Consumer Protection Act ("DTPA," Tex. Bus. & Com. Code Ann. § 17.41 et seq.) with leave to amend. (Dkt. No. 36.)
I. FACTUAL BACKGROUND
Plaintiffs allege as follows. Plaintiffs are customers of BANA who use BANA's banking services. (Dkt. No. 40, ("FAC") at ¶¶ 23-25.) BANA assesses fees when a customer has insufficient funds for a transaction ("Account Fees"). (Id. at ¶ 27.)
BANA applies either (1) a $35 insufficient funds ("NSF") fee when there are insufficient funds to pay a transaction and it rejects the charge; or (2) a $35 overdraft ("OD") fee when there are insufficient funds to pay a requested transaction and it accepts the charge. (Id. at ¶ 23.)
BANA has a "Client Assistance Program" through which it assists customers, sometimes in the form of fee relief. (Id. at ¶ 28.) Upon request from a customer, BANA representatives input a customer request into a "Refund Decision Tool," or "RDT," which examines details about the customer's account (such as the number of prior fees refunded, average balance, length of time the account was open), and based on those predefined factors, issues an automated decision on the request, and provides the representative with a script to communicate to the customer. (Id. at ¶¶ 37-38.) When a BANA representative inputs a fee refund request, she is required to choose a reason for the request from a dropdown box that lists options including "hardship" or "relationship." (Id. at ¶ 39.) Plaintiffs assume the latter refers to the length and quality of the relationship between the account holder and the bank. (Id.) The system gives some BANA employees limited discretion to override the decision of the RDT, but such overrides are disfavored and count against an employee's individual performance metrics. (Id. at ¶ 40.) Specifically, an employee's overall-performance score is reduced if their "Refund Decision Tool Adherence" level is less than 100 percent, and the lower their adherence was, the further their score decreases. This disincentivizes employees from disregarding the RDT's instructions and granting NSF or OD fee refunds. Managers have slightly more discretion because they are authorized to override more RDT decisions before their performance score if affected, but they too are penalized if their "Refund Decision Tool Adherence" level falls below the allowed threshold. (Id.)
During the Covid-19 pandemic, many BANA customers, including plaintiffs, faced financial difficulties that resulted in them not having sufficient funds in their bank accounts. When they attempted to overdraw from their accounts, BANA assessed Account Fees, exacerbating plaintiffs' financial struggles. (Id. at ¶ 16.) In response to this situation, and pressure from the public, media, and government, BANA made representations that it had additional resources to address the needs of customers impacted by the pandemic and would consider pandemic related hardship in granting fee relief. For example, BANA made statements on social media and on the BANA website. (Id. at ¶ 58.) BANA made the following specific representations:
Representation 1: On March 12, 2020, BANA told Forbes directly in an email that it "offer[ed] assistance to qualifying consumer and small business clients facing hardships, including forbearance with certain fees." (Id. at ¶ 34.)
Representation 2: On March 12, BANA claimed "through U.S. News & World Report that it would "skip" OD fees for customers who "call and request it," and later in the article that it "may refund overdraft, nonsufficient funds and monthly maintenance fees if a customer requests it." (Id.)
Representation 3: In or around May 2020, BANA began including a statement in some customers' monthly account statements that stated:
Important Messages—Please Read:(Id. at ¶ 30 (emphasis in original statement).)
We are here to help - Important Information about Coronavirus Support. The health and well-being of you and our employees remains our top priority. We are providing support by offering our clients payment deferrals through our Client Assistance Program. In addition, you may also be eligible for an Economic Impact Payment, sometimes referred to as a 'stimulus check', as part of the US Government's emergency coronavirus-related funding in the CARES Act.
How to request a payment deferral
Through our Client Assistance Program we can defer credit card, vehicle and/or home loan payment(s) and waive or refund certain account fees to help keep you on track. Visit our Client Resource Site at bankofamerica.com/Helpful Resources. Simply click the link to request a payment deferral and then sign in to Online Banking and follow the instructions.
Representation 4: In or around the same period, BANA began including identical or very similar language to that in Representation 3 in its mobile banking application on a page that customers could access for information about BANA's response to the pandemic. (Id. at ¶ 31.)
Representation 5: In a March 24, 2020 CNBC article, titled "Bank of America waives fees, defers payments on credit cards, some mortgages and auto loans during coronavirus" BANA made "or caused to be made" the statement that:
Bank of America has joined other card issuers, such as Citi, Chase, Capital One, Discover, Apple and American Express, in offering emergency support to its consumer and small business clients who are experiencing financial hardship because of the coronavirus pandemic. Through its Client Assistance Program, Bank of America is offering assistance to customers on an individual basis, depending on your specific area of need. Relief could include waiving certain account fees, like overdraft fees, and deferring
payments on your credit cards, mortgage and auto loans.(Id. at ¶ 32.)
The article also included a direct quote from BANA's head of consumer, small business and wealth management client care, Holly O'Neill:
Our teams are ready to help clients and small businesses, and we are especially focused on the needs of those experiencing hardship due to the current situation . . . . If you have been negatively impacted by coronavirus and need additional assistance related to your account please visit our website or you can give us a call.(Id. at ¶ 33.)
These representations "indicate that BANA promised customers additional new account fee waiver assistance—namely, that it would establish a program to consider requests by customers financially affected by the pandemic to refund or waive [Account Fees] that it had issued during the pandemic, and that it would administer relief through that program." (Id. at ¶ 35.)
Despite these representations, BANA did not provide any "additional" assistance for those struggling financially due to the pandemic or make any changes to the existing Client Assistance Program to enable representatives to consider Covid-related challenges in assessing if fees should be assessed or refunded. (Id. at ¶ 36.)
Allegations of Plaintiff Ramirez
Plaintiff Anthony Ramirez is a citizen of California and a truck driver. (Id. at ¶ 45.) Due to the pandemic, he lost work and by August 2021, overdrew his bank account with defendant. Over the next two months, BANA assessed a combined total of $245 in Account Fees. (Id.) In 2020 and 2021, Ramirez had seen online news articles identical or similar to Representations 1 and 2 above. (Id. at 46.) He also saw Representation 4 while using the banking application. (Id. at ¶ 48.) Based on defendant's representations, Ramirez believed BANA would consider his pandemic related hardship if and when he requested fee relief, and therefore did not take alternative steps to ensure that he did not overdraw his account, such as seeking assistance from family or obtaining a loan. (Id. at ¶ 47.) After BANA assessed Account Fees, Ramirez requested assistance based on the information he saw in the banking application. He spoke to three different customer service representatives at BANA. He told each representative that he had overdrawn his account because of financial hardship caused by the pandemic. (Id. at ¶ 51.) Each representative told him that he did not qualify for any relief. (Id.) The only reason they gave was that he was ineligible for fee refunds because his account was overdrawn. (Id.) This led him to believe that BANA had no program for considering or granting relief for its customers' pandemic related hardship. (Id. at ¶ 52.)
Allegations of Plaintiff Aldana
Plaintiff Mynor Villatoro Aldana is a citizen of California and works in a manufacturing plant. Prior to the pandemic he rarely incurred Account Fees. (Id. at ¶ 53.) However, his hours were reduced due to the pandemic, causing him financial strain. (Id. at ¶ 54.) In late 2020, Aldana searched online to see if BANA had any program in place to address pandemic related hardship. He found the CNBC article containing Representation 5. (Id. at ¶ 56.) Aldana was first assessed Account Fees in January 2022. (Id. at ¶ 61.) In total, he was charged $210 in Account Fees. (Id.) Aldana called BANA to request relief. He told the representatives he spoke with that he was encountering pandemic-related financial hardship and seeking relief from Account Fees. (Id. at ¶ 63.) The representatives told him that "no such program existed," and one said that the information Aldana had obtained from the sources he had read was "wrong." (Id.) Had Aldana known that BANA would not consider pandemic related hardship in refunding fees, he would have taken other steps to maintain his bank balance, such as obtaining a small loan or moving to a bank that did offer Covid-related relief. (Id. at ¶ 64.)
Allegations of Plaintiff Hobson
Plaintiff Janet Hobson is a resident of New Jersey. She is seventy years old and had to stop working as a Lyft driver to protect her health during the pandemic. (Id. at ¶ 65.) Hobson saw Representation 4 when using BANA's banking application. (Id. at ¶ 66.) Due to her pandemic related financial challenges, Hobson overdrew her account on several occasions in 2020 and 2021 and BANA assessed multiple Account Fees, some of which it refunded. (Id. at ¶ 69.)
Some of the specific fee amounts listed in the complaint appear inaccurate due to typographical errors. The Court therefore does not include the amounts here.
Hobson contacted BANA at least twelve times regarding Account Fee relief. Each time, she first called BANA's customer service number and requested refunds of the fees assessed. She specifically told representatives that she was experiencing financial hardship as a result of the pandemic. None of the representatives granted her request and some said that fees were only refunded if assessed in error by BANA. (Id. at ¶ 70.)
Hobson also spoke with representatives at a bank branch. (Id. at ¶ 71.) On most occasions, employees repeated what BANA's representatives told her on the phone. But several times, managers with whom she spoke reversed some Account Fees. Consistent with the dropdown options in the Refund Decision Tool that existed before the pandemic, those managers told her that BANA's willingness to refund fees depended on her "relationship" with the bank. (Id. at ¶ 71.) They never mentioned any program for customers affected by COVID-19. (Id.)
In December 2021, BANA provided Hobson with a "refund history" that gave purported reasons for its decisions to either grant or deny refunds of Account Fees from December 2020 to December 2021. (Id. at ¶ 72.) This history showed that BANA denied Hobson's request for relief from Account Fees eight out of eleven times and granted her request and refunded fees three times. (Id.) Although she requested relief due to COVID-related financial hardship every time she spoke with BANA, the refund history mentioned "hardship" only twice (for two refunds granted in December 2020) and said nothing about COVID-related financial hardship. (Id.)
BANA's representations that it would provide additional resources and relief to those impacted by the pandemic caused Hobson to remain with the bank. Had she known that BANA would not provide such relief, she would have switched to a bank that did offer such relief. (Id. at ¶ 75.)
II. LEGAL STANDARD
The parties do not dispute the Rule 12(b)(6) standard. However, there is some disagreement as to what is required to plead claims sounding in fraud under Rule 9, which parties do not contest applies to all of plaintiffs' claims. In general, Rule 9(b) requires that when fraud is alleged, "a party must state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). A plaintiff must identify " 'the who, what, when, where, and how' of the misconduct charged." Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). Any averments which do not meet that standard should be "disregarded," or "stripped" from the claim for failure to satisfy Rule 9(b). Id.
III. ANALYSIS
A. Failure to Meet Rule 9 Pleading Standard
Defendant states that plaintiffs have failed to meet Rule 9's pleading requirements in four ways. The Court addresses each in turn.
1. Reliance on "Information and Belief" Pleading
Defendant argues that plaintiffs' allegations based upon "information and belief" are improper under Rule 9. Generally, "allegations of fraud based on information and belief do not satisfy Rule 9(b)," however this rule "may be relaxed with respect to matters within the opposing party's knowledge" given that "in such situations, plaintiffs can not be expected to have personal knowledge of the relevant facts." Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993).
Here, plaintiffs only use information and belief pleading in allegations regarding how defendant's Refund Decision Tool functions. (See Comp. at ¶¶ 37, 41-42.) Such facts are not readily available to plaintiffs prior to discovery and are properly pled on information and belief.
2. Reliance on "Individual Experiences"
Defendant argues that the complaint "falls short" of Rule 9's requirements because it is "based on [plaintiffs'] individual experiences." (Dkt. No. 43 at 9.) According to defendant, it is not plausible to allege that "no program ever existed based on the experiences of three individuals." (Id. at 10.) The authority cited by defendant does not support this proposition. Even if it did, the argument is based on a false premise. The complaint does not rely only on the plaintiffs' individual experiences with BANA. Plaintiffs allege that they were told by BANA representatives that BANA did not have a program or process for considering COVID-related hardship for anyone. They also plead specific facts regarding how defendant's Refund Decision Tool lacked the functionality to consider Covid-19 hardships. The allegations are sufficient to plausibly support their claims.
Defendant cites two cases, neither of which supports defendant's argument. In In re Seagate Tech., the court did not find that plaintiffs failed to adequately plead that defendant misrepresented the read error rate of its product because they pled "anecdotal experiences," the court held that plaintiffs had failed to plead any facts going to the "true" error rate. In re Seagate Tech. LLC Litig., 233 F. Supp. 3d 776, 790 (N.D. Cal. 2017). The court even states that with additional information, it could "be reasonable to extrapolate that Seagate's representations of this metric were false based on Plaintiffs' anecdotal experiences." In re Seagate Tech. LLC Litig., 233 F. Supp. 3d 776, 790 (N.D. Cal. 2017). In Steinberg v. PRT Group, Inc., the court did not address whether the individual experiences of plaintiffs can be the basis for a plausible claim of more widespread fraud. There, the court held that one statement in defendant's prospectus could not on its own indicate a broader misrepresentation. Steinberg v. PRT Grp., Inc., 88 F. Supp. 2d 294, 304 (S.D.N.Y. 2000).
3. Failure to Plead Statement Was False When Made
Defendant argues that plaintiff Aldana has failed to plead that the BANA representation he relied upon, Representation 5, was false when made because he did not contact BANA about fee relief until 2022, years after the representation was made available online. (Dkt. No. 43 at 11.)
Defendant raises this argument in the context of arguing that plaintiffs failed to plausibly allege that BANA did not have a Covid-specific relief program and does not address that this is a violation of Rule 9, however, the Court finds the issue sufficiently raised to warrant analysis. The Court sees no prejudice in addressing the issue as plaintiffs respond to the argument in their opposition. (Dkt. No. 44 at 13.)
Under Rule 9, a plaintiff must allege why the disputed statement was "false when made." Avakian v. Wells Fargo Bank, N.A., 827 F. App'x 765, 766 (9th Cir. 2020). Conclusory allegations are insufficient. "Rather, to plead falseness, the plaintiff must provide an explanation as to why the disputed statement was untrue or misleading when made, which may be done by pointing to inconsistent contemporaneous statements or information." Muse Brands, LLC v. Gentil, No. 15-CV-01744-JSC, 2015 WL 4572975, at *4 (N.D. Cal. July 29, 2015) (internal quotation marks and citation omitted) (cleaned up).
As plaintiffs explain in their opposition, the complaint alleges that BANA's representations were false when made in multiple ways. It alleges that at the time the statement was made defendant did not make any changes to its Refund Decision Tool or otherwise make internal changes to allow representatives to consider Covid-related hardship when considering requests for fee relief. It also alleges that, closer in time to when Representation 5 was made, defendant's representatives told the other plaintiffs that it did not provide Covid-specific relief. Defendant does not address why either of these allegations is insufficient to meet the "false when made" requirement. It therefore fails to meet its burden to show plaintiffs have not adequately shown that the representation relied upon by Aldana was false when made.
4. Failure to Plead Actionable Misrepresentations
Defendant contends that plaintiffs have not identified any actionable misrepresentations. (Dkt. No. 43 at 2.) All but three of defendant's arguments are irrelevant as they are based on the false assertion that the theory of the complaint is "that BANA promised to refund all fees in light of the pandemic and did not." (Id. at 4.)
Though the complaint alleges that some plaintiffs thought they were entitled to relief from all fees, that is not the general theory of the complaint. (See e.g. Comp. at ¶¶ 92, 104, 113 (alleging claims based on BANA's failure to create a program that would consider requests for refunds incurred due to Covid-related hardship and administer such relief).) Plaintiffs allege that BANA represented that it would have additional support for those impacted by the pandemic, which would include taking pandemic-related hardship into consideration when determining if fees should be assessed or refunded.
However, the Court agrees with defendant that the representations pled by plaintiffs cannot fairly be read to indicate that BANA said it would create a distinct program. Representation 3 explicitly states "[w]e are providing support by offering our clients payment deferrals through our Client Assistance Program." (Comp. at ¶ 30 (emphasis supplied).) To the extent plaintiffs base their claims on the allegation that BANA promised to create a distinct program to address Covid-related requests for relief, those allegations are "stripped" from the complaint. Kearns, 567 F.3d at 1124. As all of plaintiffs' claims also rely on the theory that BANA represented that it would provide "additional" support in response to Covid, including taking Covid related hardship into consideration when refunding and assessing Account Fees, stripping the "program" related allegations does not lead to dismissal of any of plaintiffs' claims.
Plaintiffs interpreted this Court's statement that its order on defendant's first motion to dismiss "should not be read to hold that plaintiffs could not bring these claims based on allegations that BANA led them to believe a program was created to address fee refunds in light of the pandemic, but did not do so," Dkt. No. 36 at 11, to mean that the Court "held that such claims must be" based on such allegations. (Dkt. No. 44 at 1 (emphasis supplied).) As this Order makes clear, that is not an accurate reading of this Court's prior order.
B. DAMAGES
Defendant next argues that plaintiffs have failed to plausibly plead damages. Again, defendant's arguments do not address plaintiffs' actual allegations in the operative complaint and are largely irrelevant. BANA first asserts that plaintiffs allege they were injured by BANA "granting a requested fee refund through business-as-usual processes rather than a COVID-specific relief program." (Dkt. No. 43 at 7.) Second, BANA asserts that plaintiffs allege that they were injured because BANA did not refund all or certain fees. (Dkt. No. 43 at 8; see also Dkt. No. 46 at 3 (restating these arguments).) Plaintiffs do not assert either of these damages theories. They allege that BANA represented it would take Covid-related hardship into consideration when assessing requests for fee relief, that in reliance on those representations, plaintiffs incurred fees rather than take steps to avoid them, and that when plaintiffs requested relief, BANA did not take their Covid-related hardship into consideration and had no process for doing so. Defendant does not address this damages theory.
Though it is defendant's burden to show that plaintiff has failed to plausibly plead injury, the Court notes that it is persuaded by plaintiffs' comparison of this case to Gutierrez. In Gutierrez, the Ninth Circuit found that even though plaintiffs' injury (the assessment of fees on their bank accounts) was in part due to their own failure to monitor their account, that defendant Wells Fargo's "misleading statements" regarding how such fees would be posted and assessed "was a significant cause of the magnitude of the harm" and that it therefore was not erroneous for the district court to find that plaintiffs had alleged reliance for purposes of standing. Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712, 728 (9th Cir. 2012). Similarly, here, defendant's representations may not have been the sole reason plaintiffs' incurred fees, but plaintiffs plausibly allege that the representations induced them to believe incurring fees was a better option than taking other steps, such as obtaining loans, and that defendant's alleged failure to follow through on its promises thus increased the "magnitude" of the harm they suffered.
However, one argument raised by defendant is potentially relevant to the harm plaintiffs allege. Defendant claims that plaintiffs cannot allege any damage stemming from the assessment of Account Fees because they were "contractually obligated" to pay such fees. (Dkt. No. 43 at 8.) The operative complaint does not mention any contracts, nor does defendant specify the contracts to which it refers. The Court assumes from defendant's reference to this Court's first motion to dismiss order that defendant is referring to the Account Agreements alleged in plaintiffs' initial complaint, but not alleged in the operative complaint. It is not clear to the Court that the contracts are relevant to its analysis here given that they are not alleged in the complaint. Even if relevant, defendant's argument fails. In its prior motion to dismiss order, this Court did not, as BANA represents, hold that plaintiffs were obligated through the Account Agreements to pay all Account Fees. The Court held only that plaintiffs could not plausibly allege that defendant violated the covenant of good faith and fair dealing implied in the Account Agreements by violating representations made outside of and apart from those agreements. (Dkt. No. 36 at 8.)
Finally, BANA argues that Ramirez has failed to plead an injury stemming from BANA's failure to provide Covid-specific fee assistance because he pleads that BANA told him he was ineligible for relief because his account had a negative balance, not because Covid-specific relief was not available. (Dkt. No. 43 at 11.) Plaintiffs respond that Ramirez has still adequately alleged that BANA did not provide any Covid-specific relief because BANA denied his request " 'without any further investigation or consideration of his circumstances" though it had promised to assess fee relief on a "case-by-case basis." (Dkt. No. 44 at 7 (quoting Comp. at ¶ 52).)
Defendant raises this argument in the context or arguing that plaintiffs failed to plausibly allege a "COVID-Specific Client Assistance Program" and not as the Court addresses it here, as an argument for finding that Ramirez has failed to allege that he was damaged by defendant's conduct. The Court finds the issue sufficiently raised to be addressed. The Court sees no prejudice in doing so as plaintiffs address the argument in their opposition.
Reading the complaint in the light most favorable to plaintiffs, as the Court must on a motion to dismiss, the Court finds that Ramirez has adequately alleged damages stemming from BANA's failure to provide the support they represented was available to customers impacted by the pandemic. The BANA representatives told Ramirez he was ineligible for fee relief because his account was overdrawn. This could be understood as an indication that if his account was not overdrawn, he would have access to fee relief. However, based on the facts alleged, it is equally reasonable for Ramirez to understand the BANA representatives' statements to mean that no relief was available even if his account was paid up. As pled, the BANA representatives did not clarify to Ramirez that relief, including special consideration of Covid-related hardship, would be available were he to pay his account balance. By not providing that information, the representatives effectively prevented Ramirez from benefiting from any such relief.
C. Reliance
The Court declines to address defendant's reliance related arguments, which should have been raised in defendant's motion but were raised for the first time in defendant's Reply. See Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1273 n. 2 (9th Cir. 1993) (presenting new information in a reply is improper and deprives the opposing party of an opportunity to respond).
IV. CONCLUSION
In conclusion, the motion to dismiss is DENIED. Defendant shall file an answer within fourteen (14) days of this order. A case management conference is scheduled for November 14, 2022 at 2:00 p.m.
The stipulation for extension of time pending at docket number 45 is dismissed as moot.
This terminates docket numbers 43 and 45.
IT IS SO ORDERED.