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Brenner v. Williams-Sonoma, Inc.

United States Court of Appeals, First Circuit

August 16, 2017

JACQUELINE BRENNER, on behalf of herself and all others similarly situated, Plaintiff, Appellant,
v.
WILLIAMS-SONOMA, INC., Defendant, Appellee.

         APPEAL 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 appellant.

          P. Craig Cardon, Dylan J. Price, Sheppard Mullin Richter & Hampton LLP, Nicholas C. Theodorou, Creighton K. Page and Foley Hoag LLP on brief for appellee.

          Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

          TORRUELLA, Circuit Judge.

         The 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 jurisdiction.

         I. Background

         On September 5, 2010, Jacqueline Brenner ("Mrs. Brenner") provided her zip code to Williams-Sonoma, Inc. ("Williams-Sonoma") [1] 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 merchandise catalogs.

         On 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).[2] 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.

         Mr. 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 death.[3]

         The 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, [4] and because his claim under Mass. Gen. Laws ch. 93, § 105(a) did not comply with the relevant statute of limitations, [5] which sets a four year window.[6]

         Although 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.

         Mr. 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.[7] 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 ...


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