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Ewing v. Pollard

United States District Court for the Southern District of California

February 10, 2020, Decided; February 10, 2020, Filed

Case No.: 19-CV-855-CAB-BGS

Opinion

ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT AND DISMISSING CASE

[Doc. Nos. 24, 31]

On October 30, 2019, pro se Defendant Mark Pollard filed a motion to dismiss the first amended complaint. Because the motion and reply included evidence outside the pleadings, on December 4, 2019, the Court entered an order converting the motion to be for summary judgment and gave both parties an opportunity to present all relevant evidence. Separately, Plaintiff Anton Ewing has filed a motion for leave to file a second amended complaint. Briefing is now complete on both motions, and the Court deems them suitable for submission without oral argument. As discussed below, Ewing's motion is denied, and Pollard's motion is granted.

I. Background

Serial litigant1 Anton Ewing, pro se, filed this lawsuit for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). Pollard is the only defendant. The case began with motion practice concerning service of the complaint, including a motion to quash service that [*2]  the Court granted. Disputes over the effectiveness of service only ended when Pollard accepted service and filed a motion to dismiss. In response to that first motion to dismiss, Ewing filed the first amended complaint ("FAC"). Pollard then moved to dismiss the FAC, and as discussed above, after that motion was fully briefed, the Court entered an order converting it to a motion for summary judgment. In response to that order, Ewing filed the motion for leave to file a second amended complaint. Pollard then filed a declaration with exhibits in support of summary judgment on December 20, 2019. Ewing then filed a response to Pollard's declaration, to which Pollard filed a reply. Pollard has also opposed Ewing's motion for leave to amend.

II. Motion for Leave to Amend

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2020 U.S. Dist. LEXIS 22659 *

ANTON EWING, Plaintiff, v. MARK POLLARD, Defendant.

Prior History: Ewing v. Pollard, 2019 U.S. Dist. LEXIS 104453 (S.D. Cal., June 21, 2019)

CORE TERMS

summary judgment, telephone, dialed, motion to dismiss, motion for leave, cell phone, converting, discovery, offers, amend, second amended complaint, no evidence, declaration, Disputes, cellular