JACQUELINE BRENNER, on behalf of herself and all others similarly situated, Plaintiff, Appellant,
WILLIAMS-SONOMA, INC., Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge]
Douglas Greg Blankinship, Todd S. Garber, and Finkelstein,
Blankinship, Frei-Pearson & Garber, LLP on brief for
Craig Cardon, Dylan J. Price, Sheppard Mullin Richter &
Hampton LLP, Nicholas C. Theodorou, Creighton K. Page and
Foley Hoag LLP on brief for appellee.
Howard, Chief Judge, Torruella and Lynch, Circuit Judges.
TORRUELLA, Circuit Judge.
would-be appellant in this case, Ronald Brenner ("Mr.
Brenner") sought to amend his late-wife's putative
class action complaint in order to name himself as lead
plaintiff. The district court ruled that such an amendment
would be futile and Mr. Brenner never became a party to the
action. We find that Mr. Brenner does not fall within an
exception to our general rule that non-parties may not
appeal. Microsystems Software, Inc. v. Scandinavia Online
AB, 226 F.3d 35, 39-42 (1st Cir. 2000) (identifying
exceptions to the general rule barring appeals by
non-parties). We therefore dismiss this appeal for lack of
September 5, 2010, Jacqueline Brenner ("Mrs.
Brenner") provided her zip code to Williams-Sonoma, Inc.
("Williams-Sonoma")  while using a credit card to
conduct a purchase at one of the retailer's locations in
Massachusetts. Williams-Sonoma used Mrs. Brenner's zip
code to learn her mailing address, and then sent her
April 15, 2013, Mrs. Brenner filed a putative class action
complaint alleging that Williams-Sonoma's practice of
collecting customers' zip codes constituted unjust
enrichment, and violated Mass. Gen. Laws ch. 93, §
105(a). Following the filing of the complaint, the
case proceeded in the regular course until October 15, 2015,
when Mrs. Brenner's counsel filed a Suggestion of Death
and Mr. Brenner, Mrs. Brenner's husband, moved pursuant
to Fed.R.Civ.P. 25(a)(1) ("Rule 25") to substitute
himself for Mrs. Brenner in his capacity as executor of her
estate, and under Fed.R.Civ.P. 15(a)(2) ("Rule 15")
for leave to amend the complaint to add himself as a
plaintiff in his individual capacity.
Brenner's motions were referred to a magistrate judge for
a Report and Recommendation ("R & R"). On
January 27, 2016, the magistrate issued her R & R in
which she recommended to the district court that both of Mr.
Brenner's motions be denied, and the case dismissed. The
magistrate recommended denying Mr. Brenner's motion to
substitute because both of Mrs. Brenner's claims against
Williams-Sonoma were extinguished upon her
magistrate further recommended denying Mr. Brenner's
motion for leave to amend the complaint to add himself as a
plaintiff under Rule 15 because such an amendment would be
futile given that Mr. Brenner was not a member of the class
as alleged in the complaint,  and because his claim under Mass.
Gen. Laws ch. 93, § 105(a) did not comply with the
relevant statute of limitations,  which sets a four year
Mr. Brenner did not file a motion to intervene in the case
pursuant to Fed.R.Civ.P. 24(a)(2) ("Rule 24"), the
magistrate did address Mr. Brenner's suggestion, made in
a reply memorandum, that Rule 24 gave him the right to
intervene. The magistrate found that, even if Mr. Brenner had
filed a motion under Rule 24, it would not have succeeded
because, as discussed above, he was not a member of the class
identified by the complaint.
Brenner filed an objection to the R & R but he did not
object to the magistrate's recommendation that the
district court deny his motion to substitute, so the district
court adopted it. Mr. Brenner did object to the
magistrate's recommendation that his motion for leave to
amend pursuant to Rule 15 be denied, but the district court
determined that amendment would be futile. The district court
adopted the magistrate's reasoning that Mr. Brenner's
own claim against ...