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United States of America, and the States of California, Illinois v. Dish Network

April 11, 2013

UNITED STATES OF AMERICA, AND THE STATES OF CALIFORNIA, ILLINOIS, NORTH CAROLINA, AND OHIO, PLAINTIFFS,
v.
DISH NETWORK, L.L.C., DEFENDANT,



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge.

E-FILED

Thursday, 11 April, 2013 09:23:21 AM Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on Defendant Dish Network L.L.C.'s Motion to Strike Plaintiffs' Improper Second Amended Complaint (d/e 260). The Motion is DENIED.

This Court granted Plaintiffs United States of America and the States of California, Illinois, North Carolina, and Ohio leave to file a Second Amended Complaint. The Second Amended Complaint Plaintiffs filed on March 12, 2013 was consistent with the proposed Second Amended Complaint Plaintiffs had attached to their Motion for Leave to File Second Amended Complaint and the Complaint filed in Dish II (Case No. 12-3221). Therefore, Defendant is not prejudiced.

I. BACKGROUND

On May 18, 2012, Plaintiffs filed a Motion for Leave to File a Second Amended Complaint (Motion for Leave). See d/e 135. Plaintiffs attached a proposed Second Amended Complaint to their Motion. See d/e 135-1(clean copy), 135-2 (redline/strikeout copy). On June 20, 2012, United States Magistrate Judge Byron G. Cudmore denied Plaintiff's Motion for Leave to Amend. See d/e 155.

On March 5, 2013, this Court held a hearing to address whether to consolidate this case with Case No. 12-3221 and/or grant Plaintiffs leave to amend their complaint to add the new claim identified in their Motion for Leave. At the hearing, the Court granted Plaintiffs leave to file their Second Amended Complaint and gave Plaintiffs seven days to file the amendment.

At 3:27 p.m. on March 12, 2013, Plaintiffs filed a Second Amended Complaint. See d/e 257. At 4:02 p.m., this Court's written Opinion was filed. See d/e 258 . In the written Opinion, the Court directed the Clerk to file the proposed Second Amended Complaint attached to Plaintiffs' Motion for Leave. However, because the Second Amended Complaint had already been filed, the Clerk did not file the proposed Second Amended Complaint attached to Plaintiffs' Motion for Leave. The Second Amended Complaint was deemed filed as of the date Plaintiffs sought leave -- May 18, 2012. See Opinion (d/e 258).

II. ANALYSIS

In the Motion to Strike, Defendant asserts that the Second Amended Complaint Plaintiffs filed on March 12, 2013 was materially different from the proposed Second Amended Complaint attached to the Motion for Leave. Specifically, Paragraph 39 of the proposed Second Amended Complaint alleged as follows:

Since on or about October 17, 2003, DISH Network has initiated outbound telephone calls to phone numbers of persons who have stated that they do not wish to receive an outbound telephone call made by or on behalf of DISH Network.

See d/e 135-1. In contrast, Paragraph 39 of the Second Amended Complaint that Plaintiffs filed on March 12, 2013 alleges as follows:

Since on or about October 17, 2003, DISH Network has initiated or caused to be initiated outbound telephone calls to phone numbers of persons who have stated that they do not wish to receive any outbound telephone call ...


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