Brinker v. Normandin's, No. 5:2014cv03007 - Document 168 (N.D. Cal. 2017)

Court Description: ORDER GRANTING 164 STIPULATION RE THIRD AMENDED COMPLAINT. Signed by Judge Edward J. Davila on 10/6/2017. Plaintiffs shall file their amended complaint as a separate docket entry. (ejdlc2S, COURT STAFF) (Filed on 10/6/2017)

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Brinker v. Normandin&#039;s Doc. 168 1 Steven M. Tindall, CSB #187862 Email: smt@classlawgroup.com 2 GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 3 Oakland, California 94612-1406 Telephone: (510) 350-9700 4 Facsimile: (510) 350-9701 5 [Additional Counsel Appear on Signature Page] 6 Attorneys for Plaintiffs and the Proposed Class 7 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 8 9 ALAN BRINKER, AUSTIN RUGG, and ANA SANDERS, individually and on behalf 10 of all others similarly situated, Plaintiffs, 11 12 v. NORMANDIN’S, a California corporation, 13 d/b/a NORMANDIN CHRYSLER JEEP DODGE RAM, and ONECOMMAND, INC., 14 Defendants. 15 NO. 5:14-cv-03007-EJD-HRL STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF THIRD AMENDED COMPLAINT AND DISMISSAL OF OTHER CLAIMS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1)(A)(ii) JURY TRIAL DEMAND HON. EDWARD J. DAVILA 16 Complaint Filed: July 1, 2014 17 DATE: November 16, 2017 TIME: 10:00 a.m. LOCATION: Courtroom 4 – 5th Floor 18 19 I. STIPULATION 20 WHEREAS, Plaintiffs wish to amend their putative class definitions in this action and 21 file the Third Amended Complaint attached hereto as Exhibit 1; 22 23 24 STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF THIRD AMENDED COMPLAINT - 1 CASE NO. 5:14-CV-03007-EJD-HRL Dockets.Justia.com 1 WHEREAS, Plaintiffs wish to dismiss without prejudice any and all claims of absent 2 putative class members in the Second Amended Complaint other than those encompassed within 3 the Third Amended Complaint, relating to the sole remaining amended putative class; 4 WHEREAS, Defendants do not oppose the filing of this Third Amended Complaint, 5 pursuant to Fed. R. Civ. P. 15(a)(2); and 6 WHEREAS, the parties stipulate that no responsive pleading to the Third Amended 7 Complaint shall be required, pending the Court’s Orders granting or denying preliminary and/or 8 final approval of the settlement entered into between the parties on or about October 3, 2017; and 9 WHEREAS, Defendants do not oppose the dismissal without prejudice of any and all 10 claims of absent putative class members in the Second Amended Complaint other than those in 11 the Third Amended Complaint, relating to the sole remaining amended putative class. 12 IT IS SO STIPULATED. 13 RESPECTFULLY SUBMITTED AND DATED this 5th day of October, 2017. 14 TERRELL MARSHALL LAW GROUP PLLC ROBARDS & STEARNS 15 By: /s/ Beth E. Terrell, CSB #178181 Beth E. Terrell, CSB #178181 16 Email: bterrell@terrellmarshall.com Mary B. Reiten, CSB #203412 17 Email: mreiten@terrellmarshall.com Adrienne D. McEntee, Admitted Pro 18 Hac Vice Email: amcentee@terrellmarshall.com 19 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 20 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 21 By: /s/ Andrew V. Stearns, CSB #164849 Andrew V. Stearns, SBN #164849 Email: astearns@boglawyers.com Robert B. Robards, SBN #166855 Email: rrobards@boglawyers.com 718 University Avenue, Suite 216 Los Gatos, California 95032 Telephone: (408) 214-6432 Facsimile: (408) 560-9592 Attorneys for Defendant Normandin’s 22 23 24 STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF THIRD AMENDED COMPLAINT - 2 CASE NO. 5:14-CV-03007-EJD-HRL 1 2 3 4 5 6 7 8 Steven M. Tindall, CSB #187862 Email: smt@classlawgroup.com GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, California 94612-1406 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 Rob Williamson, Admitted Pro Hac Vice Email: roblin@williamslaw.com Kim Williams, Admitted Pro Hac Vice Email: kwilliams@williamslaw.com WILLIAMSON & WILLIAMS 2239 West Viewmont Way, West Seattle, Washington 98199 Telephone: (206) 295-3085 9 Attorneys for Plaintiffs and the Proposed Class 10 KMK LAW 11 12 By: /s/ Steven C. Coffaro, Pro Hac Vice Steven C. Coffaro, Admitted Pro Hac Vice 13 Email: scoffaro@kmklaw.com Drew Hicks, Admitted Pro Hac Vice 14 Email: dhicks@kmklaw.com One East Fourth Street, Suite 1400 15 Cincinnati Ohio 45202 Telephone: (513) 579-6400 16 Facsimile: (513) 579-6457 17 18 19 20 Sean P. Flynn, SBN #220184 Email: sflynn@gordonrees.com GORDON & REES, LLP 2211 Michelson Drive, Suite 400 Irvine, California 92612 Telephone: (949) 255-6950 Facsimile: (949) 255-2060 21 22 23 24 STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF THIRD AMENDED COMPLAINT - 3 CASE NO. 5:14-CV-03007-EJD-HRL 1 2 3 4 Daniel S. Kubasak, SBN #222336 Email: dkubasak@gordonrees.com GORDON & REES LLP 275 Battery Street, Suite 2000 San Francisco, California 94111 Telephone: (415) 986-5900 Facsimile: (415) 986-8054 5 Attorneys for Cross Defendant OneCommand, Inc. 6 II. [PROPOSED] ORDER 7 IT IS SO ORDERED. 8 October 6 Dated this ______ day of _______________________, 2017. 9 10 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF THIRD AMENDED COMPLAINT - 4 CASE NO. 5:14-CV-03007-EJD-HRL 1 III. LOCAL RULE 5-1(I)(3) STATEMENT Pursuant to Local Rule 5-1(i)(3), I hereby attest that concurrence in the filing of this 2 3 document has been obtained from counsel for all parties, and that I will maintain records to 4 support this concurrence by all counsel subject to this stipulation as required under the local 5 rules. 6 7 8 9 10 11 DATED this 5th day of October, 2017. TERRELL MARSHALL LAW GROUP PLLC By: /s/ Beth E. Terrell, CSB #178181 Beth E. Terrell, CSB #178181 Email: bterrell@terrellmarshall.com 936 North 34th Street, Suite 300 Seattle, Washington 98103 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 12 Attorneys for Plaintiffs and the Proposed Class 13 14 15 16 17 18 19 20 21 22 23 24 STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF THIRD AMENDED COMPLAINT - 5 CASE NO. 5:14-CV-03007-EJD-HRL 1 CERTIFICATE OF SERVICE 2 I, Beth E. Terrell, hereby certify that on October 5, 2017, I electronically filed the 3 foregoing with the Clerk of the Court using the CM/ECF system which will send notification of 4 such filing to the following: 5 6 7 8 9 Andrew V. Stearns, SBN #164849 Email: astearns@boglawyers.com Robert B. Robards, SBN #166855 Email: rrobards@boglawyers.com ROBARDS & STEARNS 718 University Avenue, Suite 216 Los Gatos, California 95032 Telephone: (408) 214-6432 Facsimile: (408) 560-9592 10 Attorneys for Defendant Normandin’s 11 Sean P. Flynn, SBN #220184 Email: sflynn@gordonrees.com GORDON & REES LLP 2211 Michelson Drive, Suite 400 Irvine, California 92612 Telephone: (949) 255-6950 Facsimile: (949) 255-2060 12 13 14 15 16 17 18 Daniel S. Kubasak, SBN #222336 Email: dkubasak@gordonrees.com GORDON & REES LLP 275 Battery Street, Suite 2000 San Francisco, California 94111 Telephone: (415) 986-5900 Facsimile: (415) 986-8054 19 20 21 22 23 24 STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF THIRD AMENDED COMPLAINT - 6 CASE NO. 5:14-CV-03007-EJD-HRL 1 5 Steven C. Coffaro, Admitted Pro Hac Vice Email: scoffaro@kmklaw.com Drew Hicks, Admitted Pro Hac Vice Email: dhicks@kmklaw.com KMK LAW One East Fourth Street, Suite 1400 Cincinnati Ohio 45202 Telephone: (513) 579-6400 Facsimile: (513) 579-6457 6 Attorneys for Cross Defendant OneCommand, Inc. 2 3 4 7 8 DATED this 5th day of October, 2017. TERRELL MARSHALL LAW GROUP PLLC 9 By: 10 11 12 /s/ Beth E. Terrell, CSB #178181 Beth E. Terrell, CSB #178181 Email: bterrell@terrellmarshall.com 936 North 34th Street, Suite 300 Seattle, Washington 98103 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 13 Attorneys for Plaintiffs and the Proposed Class 14 15 16 17 18 19 20 21 22 23 24 STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF THIRD AMENDED COMPLAINT - 7 CASE NO. 5:14-CV-03007-EJD-HRL — EXHIBIT 1 — 1 2 3 4 5 Steven M. Tindall, CSB #187862 Email: smt@classlawgroup.com GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, California 94612-1406 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 6 [Additional Counsel Appear on Signature Page] 7 Attorneys for Plaintiffs and the Proposed Class 8 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 9 10 11 12 13 ALAN BRINKER, AUSTIN RUGG, and ANA SANDERS, individually and on behalf of all others similarly situated, Plaintiffs, 14 15 16 17 18 19 20 v. NORMANDIN’S, a California corporation, d/b/a NORMANDIN CHRYSLER JEEP DODGE RAM, and ONECOMMAND, Inc., Defendants. NO. 5:14-cv-03007-EJD-HRL THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF JURY TRIAL DEMAND HON. EDWARD J. DAVILA Complaint Filed: July 1, 2014 DATE: TIME: LOCATION: Courtroom 4 – 5th Floor 21 22 Plaintiffs Alan Brinker, Austin Rugg, and Ana Sanders (hereinafter collectively referred 23 to as “Plaintiffs”), by their undersigned counsel, for this class action complaint against 24 Defendant Normandin’s d/b/a Normandin Chrysler Jeep Dodge Ram and its present, former, or 25 future direct and indirect parent companies, subsidiaries, affiliates, agents, and/or other related 26 entities, and Defendant OneCommand, Inc., and its present, former, or future direct and indirect 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 1 CASE NO. 5:14-CV-03007-EJD-HRL 1 parent companies, subsidiaries, affiliates, agents, and/or other related entities (collectively 2 referred to as “Defendants”) allege as follows: 3 4 I. 1. INTRODUCTION Nature of Action. Plaintiffs, individually and as class representatives for all 5 others similarly situated, bring this action against Defendants for violations of the Telephone 6 Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). 7 8 9 10 11 12 13 14 II. 2. PARTIES Plaintiff Alan Brinker. Plaintiff Alan Brinker (“Plaintiff Brinker”) is a citizen of California, residing in Santa Clara County, California. 3. Plaintiff Austin Rugg. Plaintiff Austin Rugg (“Plaintiff Rugg”) is a citizen of California, residing in San Mateo County, California. 4. Plaintiff Ana Sanders. Plaintiff Ana Sanders (“Plaintiff Sanders”) is a citizen of California, residing in Santa Clara County, California. 5. Defendant Normandin’s d/b/a Normandin Chrysler Jeep Dodge Ram. 15 Normandin’s d/b/a Normandin Chrysler Jeep Dodge Ram (“Defendant Normandin”) is a 16 California corporation with its principal place of business in San Jose, California. Defendant is 17 registered to do and is doing business in California. 18 6. Defendant OneCommand. OneCommand (“Defendant OneCommand”) is a 19 Delaware corporation with its principal place of business in Mason, Ohio, which does business 20 throughout the United States, including in California. 21 22 III. 7. JURISDICTION AND VENUE Subject Matter Jurisdiction. This Court has subject matter jurisdiction over 23 Plaintiffs’ TCPA claims pursuant to 28 U.S.C. § 1331 because Plaintiffs’ TCPA claims arise 24 under the laws of the United States, specifically 47 U.S.C. § 227. 25 26 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 2 CASE NO. 5:14-CV-03007-EJD-HRL 8. 1 Personal Jurisdiction. This Court has personal jurisdiction over Defendants 2 because they do business in California, and the wrongful acts alleged in this Complaint were 3 committed in California. In addition, Defendant Normandin is a California corporation. 9. 4 Venue. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) in that 5 a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this 6 District. 7 IV. 8 9 10 THE TELEPHONE CONSUMER PROTECTION ACT OF 1991, 47 U.S.C. § 227 10. In 1991, Congress enacted the TCPA in response to a growing number of consumer complaints regarding certain telemarketing practices. 11. The TCPA makes it unlawful “to make any call (other than a call made for 11 emergency purposes or made with the prior express consent of the called party) using an 12 automatic telephone dialing system or an artificial or prerecorded voice … to any telephone 13 number assigned to a … cellular telephone service.” See 47 U.S.C. § 227(b)(1)(A)(iii). 14 12. For calls made on or after October 16, 2013, the FCC requires written prior 15 consent for prerecorded telemarketing or advertising telephone calls. 47 C.F.R. § 64.1200(a)(2); 16 (f)(8); see also In the Matter of Rules and Regs. Implementing the Tel. Consumer Prot. Act of 17 1992, 27 F.C.C.R. 1830, 1874 (2012). “Prior written consent” means “an agreement, in writing, 18 bearing the signature of the person called that clearly authorizes the seller to deliver or cause to 19 be delivered to the person called advertisements or telemarketing messages using an automatic 20 telephone dialing system or an artificial or prerecorded voice, and the telephone number to which 21 the signatory authorizes such advertisements or telemarketing messages to be delivered.” 47 22 C.F.R. § 64.1200(f)(8). The written agreement must include “a clear and conspicuous disclosure 23 informing the person signing that: (A) By executing the agreement, such person authorizes the 24 seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic 25 telephone dialing system or an artificial or prerecorded voice; and (B) The person is not required 26 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 3 CASE NO. 5:14-CV-03007-EJD-HRL 1 to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a 2 condition of purchasing any property, goods, or services.” 47 C.F.R. § 64.1200(f)(8). 13. 3 4 The TCPA provides a private cause of action to persons who receive calls in violation of 47 U.S.C. § 227(b)(1)(A). See 47 U.S.C. § 227(b)(3). 14. 5 Federal Communication Commission (“FCC”) promulgated regulations 6 “generally establish that the party on whose behalf a solicitation is made bears ultimate 7 responsibility for any violations.” See Rules and Regulations Implementing the Telephone 8 Consumer Protection Act of 1991, Memorandum and Order, 10 F.C.C. Rcd. 12391, 12397 ¶ 13 9 (1995). 15. 10 The FCC confirmed this principle in 2013, when it explained that “a seller …. 11 may be held vicariously liable under federal common law principles of agency for violations of 12 either section 227(b) or section 227(c) that are committed by third-party telemarketers.” See In 13 the Matter of the Joint Petition Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574 (2013). 14 15 16 17 18 V. A. FACTUAL ALLEGATIONS Factual Allegations Regarding Defendants 16. Defendant Normandin owns and operates an automobile dealership in San Jose, California, doing business as Normandin Chrysler Jeep Dodge Ram. 17. In addition to selling and leasing new and used automobiles, Defendant 19 Normandin’s website explains that their “services include trusted Chrysler Jeep RAM and Dodge 20 car repair” and offers “original Chrysler Jeep RAM and Dodge parts.” See 21 http://www.normandinchryslerjeep.net/about-us/ (last visited July 25, 2017). 22 18. Defendant OneCommand is an automotive marketing and advertising company. 23 It holds itself out to be the “successful dealer’s secret weapon for delivering consistent results in 24 their Sales and Service departments.” See http://www.onecommand.com/who-we-are (last 25 visited July 25, 2017). 26 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 4 CASE NO. 5:14-CV-03007-EJD-HRL 1 2 3 4 5 19. Every day, Defendant OneCommand “sends over 1,000,000 communications on behalf of [its] clients.” Id. 20. Defendant Normandin contracted with Defendant OneCommand to increase the volume of its customers. 21. Part of the Defendant OneCommand’s strategy for increasing the volume of 6 Defendant Normandin’s customers involves the use of telephone solicitation calls, including 7 ATDS generated and/or automated or prerecorded calls. 8 9 10 11 22. Defendant Normandin provides contact information from service center customers, potential car buyers, and other leads to Defendant OneCommand for purposes of telemarketing Defendant Normandin’s goods and services. 23. Defendant Normandin is legally responsible for ensuring that Defendant 12 OneCommand’s telephone solicitation activities comply with the TCPA, even if Defendant 13 Normandin does not make the calls itself. 14 24. The FCC concurs that sellers such as Defendant Normandin may not avoid 15 liability by outsourcing telemarketing because doing so “would leave consumers in many cases 16 without an effective remedy for telemarketing intrusions.” In the Matter of the Joint Petition 17 Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574, 6588 (2013). 18 25. Under the standards outlined in the FCC’s Order, and by other Courts interpreting 19 that Order, Defendant Normandin is directly liable to Plaintiffs and members of the Class as well 20 as vicariously liable through theories of agency such as actual authority and ratification. 21 26. Although Defendant OneCommand made the calls to Plaintiffs, Defendant 22 Normandin also participated in the calls by providing contact information and setting the 23 guidelines and parameters for customers who would be acceptable for Defendant OneCommand 24 to market Defendant Normandin’s services to. 25 27. Defendant Normandin ratified Defendant OneCommand’s actions by accepting 26 the benefits of Defendant OneCommand’s activities through accepting prospective customers 27 generated by Defendant OneCommand through its illegal telephone solicitation activities. THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 5 CASE NO. 5:14-CV-03007-EJD-HRL 1 B. 28. 2 3 Factual Allegations Regarding Plaintiff Brinker Defendant OneCommand on behalf of Defendant Normandin on his cellular telephone. 29. 4 6 7 8 9 30. The prerecorded message did not specify which of Plaintiff Brinker’s vehicles was allegedly in need of routine maintenance. 11 12 The call consisted of a prerecorded message which provided: Hello. I’m calling on behalf of Normandin Chrysler Jeep Dodge. Our records show that you may have missed routine maintenance that is recommended for your vehicle. Proper maintenance of your vehicle is recommended by your manufacturer to insure its performance and longevity. If we can answer any questions regarding your vehicle’s maintenance needs please contact us at (408) 266-9500. Thanks very much and have a great day. 5 10 On or around March 2014, Plaintiff Brinker received a telephone call made by 31. Plaintiff Brinker did not provide prior express consent to receive prerecorded telephone calls on his cellular telephone from either Defendant. 13 32. Defendant OneCommand made the above-described automated call. 14 33. Plaintiff Brinker’s privacy has been violated by the above-described call from, or 15 on behalf of, Defendants and it constitutes a nuisance as it is annoying and harassing. 16 17 34. calls to persons on their cellular telephones in California and throughout the United States. 18 19 20 21 22 23 24 Defendants, in concert, have made thousands of automated and/or prerecorded 35. Defendants intend to continue to make similar automated and/or prerecorded calls to persons on their cellular telephones in California and throughout the United States. C. Factual Allegations Regarding Plaintiff Rugg 36. Plaintiff Rugg is, and at all times mentioned herein was, a “person” as defined by 47 U.S.C. § 153(39). 37. In or around 2014, Plaintiff Rugg had his vehicle serviced by Defendant Normandin. 25 26 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 6 CASE NO. 5:14-CV-03007-EJD-HRL 38. 1 After having his vehicle serviced in 2014, Plaintiff Rugg received approximately 2 five (5) telephone solicitation calls on his cellular telephone, number (408) 309-XXXX, made by 3 Defendant OneCommand on behalf of Defendant Normandin. 4 39. Each of the calls was initiated for purposes of marketing Normandin’s services. 5 40. Each of the calls consisted of a prerecorded message stating words to the effect 6 that Plaintiff Rugg’s vehicle was overdue for service. 41. 7 8 On information and belief, the script of prerecorded message was very similar, or identical, to the message in paragraph 29, above. 9 42. 10 prerecorded calls. 11 43. 12 44. Plaintiff Rugg’s privacy has been violated by the above-described calls from, or on behalf of, Defendants and they constitute a nuisance as they are annoying and harassing. 45. 15 16 Plaintiff Rugg did not provide prior express consent to receive automated and/or prerecorded calls on his cellular telephone from, or on behalf of, Defendants. 13 14 Defendant OneCommand made the above-described automated and/or Defendants, in concert, have made thousands of automated and/or prerecorded calls to persons on their cellular telephones in California and throughout the United States. 46. 17 Defendants intend to continue to make similar automated and/or prerecorded calls 18 to persons on their cellular telephones in California and throughout the United States. 19 D. 20 21 22 Factual Allegations Regarding Plaintiff Sanders 47. In or around 2014, Plaintiff Sanders had her vehicle serviced by Defendant Normandin. 48. After having her vehicle serviced in 2014, Plaintiff Sanders received 23 approximately five (5) to six (6) telephone solicitation calls on her cellular telephone, number 24 (408) 499-XXXX, made by Defendant OneCommand on behalf of Defendant Normandin. 25 49. Each of the calls was initiated for purposes of marketing Normandin’s services. 26 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 7 CASE NO. 5:14-CV-03007-EJD-HRL 50. 1 2 that Plaintiff Sanders’ vehicle was overdue for service. 51. 3 4 Each of the calls consisted of a prerecorded message stating words to the effect On information and belief, the script of prerecorded message was very similar, or identical, to the message in paragraph 29, above. 5 52. 6 prerecorded calls. 7 53. 8 54. 55. Defendants, in concert, have made thousands of automated and/or prerecorded calls to persons on their cellular telephones in California and throughout the United States. 56. 13 14 Plaintiff Sanders’ privacy has been violated by the above-described calls from, or on behalf of, Defendants and they constitute a nuisance as they are annoying and harassing. 11 12 Plaintiff Sanders did not provide prior express consent to receive automated and/or prerecorded calls on her cellular telephone from, or on behalf of, Defendants. 9 10 Defendant OneCommand made the above-described automated and/or Defendants intend to continue to make similar automated and/or prerecorded calls to persons on their cellular telephones in California and throughout the United States. 57. 15 Plaintiffs and all members of the Class, defined in Paragraph 58, below, have 16 been harmed by the acts of Defendants because their privacy has been violated, they were subject 17 to annoying and harassing calls that constitute a nuisance, and they were charged for incoming 18 calls. 19 20 21 22 23 24 25 26 VI. 58. CLASS ACTION ALLEGATIONS Class Definition. Pursuant to CR 23(b)(2) and (b)(3), Plaintiffs bring this case as a class action on behalf of the following Class: All persons who owned one or more of the 8,313 cellular telephone numbers to which calls were placed by OneCommand on Normandin’s behalf on or after October 16, 2013, through the alleged use of any automatic telephone dialing system or with an artificial or prerecorded voice which calls allegedly were not made for emergency purposes or with the recipient’s prior express consent. 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 8 CASE NO. 5:14-CV-03007-EJD-HRL 1 Excluded from the Settlement Class are the Judge to whom the Action is assigned and any 2 member of the Judge’s staff and immediate family. 3 59. Numerosity. The Class is so numerous that joinder of all members is 4 impracticable. On information and belief, the Class has 8,313 members. Moreover, the 5 disposition of the claims of the Class in a single action will provide substantial benefits to all 6 parties and the Court. 7 60. Commonality. There are numerous questions of law and fact common to 8 Plaintiffs and members of the Class. These common questions of law and fact include, but are 9 not limited to, the following: a. 10 Whether Defendants and/or their affiliates, agents, and/or other persons or 11 entities acting on Defendants’ behalf violated 47 U.S.C. § 227(b)(1)(A) by making any call, 12 except for emergency purposes, to a cellular telephone number using an ATDS or artificial or 13 prerecorded voice; b. 14 Whether Defendants and/or their affiliates, agents, and/or other persons or 15 entities acting on Defendants’ behalf knowingly and/or willfully violated 47 U.S.C. 16 § 227(b)(1)(A) by making any call, except for emergency purposes, to a cellular telephone 17 number using an ATDS or artificial or prerecorded voice, thus entitling Plaintiffs and the Class 18 to treble damages; c. 19 Whether Defendants are liable for ATDS generated and/or automated or 20 prerecorded calls promoting Defendants’ products and/or services made by Defendants’ 21 affiliates, agents, and/or other persons or entities acting on Defendants’ behalf; d. 22 23 24 Whether Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf should be enjoined from violating the TCPA in the future. 61. Typicality. Plaintiffs’ claims are typical of the claims of the Class. Plaintiffs’ 25 claims, like the claims of Class arise out of the same common course of conduct by Defendants 26 and are based on the same legal and remedial theories. 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 9 CASE NO. 5:14-CV-03007-EJD-HRL 1 62. Adequacy. Plaintiffs will fairly and adequately protect the interests of the Class. 2 Plaintiffs have retained competent and capable attorneys with significant experience in complex 3 and class action litigation, including consumer class actions and TCPA class actions. Plaintiffs 4 and their counsel are committed to prosecuting this action vigorously on behalf of the Class and 5 have the financial resources to do so. Neither Plaintiffs nor their counsel have interests that are 6 contrary to or that conflict with those of the proposed Class. 7 63. Predominance. Defendants have engaged in a common course of conduct toward 8 Plaintiffs and members of the Class. The common issues arising from this conduct that affect 9 Plaintiffs and members of the Class predominate over any individual issues. Adjudication of 10 these common issues in a single action has important and desirable advantages of judicial 11 economy. 12 64. Superiority. A class action is the superior method for the fair and efficient 13 adjudication of this controversy. Classwide relief is essential to compel Defendants to comply 14 with the TCPA. The interest of individual members of the Class in individually controlling the 15 prosecution of separate claims against Defendants is small because the damages in an individual 16 action for violation of the TCPA are small. Management of these claims is likely to present 17 significantly fewer difficulties than are presented in many class claims because the calls at issue 18 are all automated. Class treatment is superior to multiple individual suits or piecemeal litigation 19 because it conserves judicial resources, promotes consistency and efficiency of adjudication, 20 provides a forum for small claimants, and deters illegal activities. There will be no significant 21 difficulty in the management of this case as a class action. 22 65. Injunctive and Declaratory Relief Appropriate. Defendants have acted on 23 grounds generally applicable to the Class, thereby making final injunctive relief and 24 corresponding declaratory relief with respect to the Class appropriate on a classwide basis. 25 Moreover, on information and belief, Plaintiffs allege that the automated calls made by 26 Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 10 CASE NO. 5:14-CV-03007-EJD-HRL 1 behalf that are complained of herein are substantially likely to continue in the future if an 2 injunction is not entered. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 VII. FIRST CLAIM FOR RELIEF (Violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(A)) 66. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 67. The foregoing acts and omissions of Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf constitute numerous and multiple violations of the TCPA, 47 U.S.C. § 227(b)(1)(A), by making calls, except for emergency purposes, to the cellular telephone numbers of Plaintiffs and members of the Class using an ATDS and/or artificial or prerecorded voice. 68. As a result of Defendants’ and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf’s violations of the TCPA, 47 U.S.C. § 227(b)(1)(A), Plaintiffs and members of the Class presumptively are entitled to an award of $500 in damages for each and every call to their cellular telephone numbers using an ATDS and/or artificial or prerecorded voice in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B). 69. Plaintiffs and members of the Class are also entitled to and do seek injunctive relief prohibiting Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf from violating the TCPA, 47 U.S.C. § 227(b)(1)(A), by making calls, except for emergency purposes, to any cellular telephone numbers using an ATDS and/or artificial or prerecorded voice in the future. VIII. SECOND CLAIM FOR RELIEF (Knowing and/or Willful Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(A)) 70. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 71. The foregoing acts and omissions of Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf constitute numerous and multiple THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 11 CASE NO. 5:14-CV-03007-EJD-HRL 1 knowing and/or willful violations of the TCPA, 47 U.S.C. § 227(b)(1)(A), by making calls, 2 except for emergency purposes, to the cellular telephone numbers of Plaintiffs and members of 3 the Class using an ATDS and/or artificial or prerecorded voice. 4 72. As a result of Defendants’ and/or their affiliates, agents, and/or other persons or 5 entities acting on Defendants’ behalf’s knowing and/or willful violations of the TCPA, 47 U.S.C. 6 § 227(b)(1)(A), Plaintiffs and members of the Class are entitled to treble damages of up to 7 $1,500 for each and every call to their cellular telephone numbers using an ATDS and/or 8 artificial or prerecorded voice in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3). 9 73. Plaintiffs and members of the Class are also entitled to and do seek injunctive 10 relief prohibiting Defendants and/or their affiliates, agents, and/or other persons or entities acting 11 on Defendants’ behalf from violating the TCPA, 47 U.S.C. § 227(b)(1)(A), by making calls, 12 except for emergency purposes, to any cellular telephone numbers using an ATDS and/or 13 artificial or prerecorded voice in the future. 14 15 16 IX. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on their own behalf and on behalf of the members of the Class, pray for judgment against Defendants as follows: 17 A. Certification of the proposed Class; 18 B. Appointment of Plaintiff Brinker, Plaintiff Rugg, and Plaintiff Sanders as 19 representatives of the Class; 20 C. Appointment of the undersigned counsel as counsel for the Class; 21 D. A declaration that Defendants and/or their affiliates, agents, and/or other related 22 23 24 25 entities’ actions complained of herein violate the TCPA; E. An order enjoining Defendants and/or their affiliates, agents, and/or other related entities, as provided by law, from engaging in the unlawful conduct set forth herein; F. An award to Plaintiffs and the Class of damages, as allowed by law; 26 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 12 CASE NO. 5:14-CV-03007-EJD-HRL 1 G. 2 law and/or equity; 3 H. Leave to amend this Complaint to conform to the evidence presented at trial; and 4 I. Orders granting such other and further relief as the Court deems necessary, just, 5 6 An award to Plaintiffs and the Class of attorneys’ fees and costs, as allowed by and proper. X. DEMAND FOR JURY 7 Plaintiffs demand a trial by jury for all issues so triable. 8 RESPECTFULLY SUBMITTED AND DATED this 5th day of October, 2017. 9 TERRELL MARSHALL LAW GROUP PLLC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 By: /s/ Beth E. Terrell, CSB#178181 Beth E. Terrell, CSB #178181 Email: bterrell@terrellmarshall.com Mary B. Reiten, CSB #203412 Email: mreiten@terrellmarshall.com Adrienne D. McEntee, Admitted Pro Hac Vice Email: amcentee@terrellmarshall.com A. Janay Ferguson, Admitted Pro Hac Vice Email: jferguson@terrellmarshall.com 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 Steven M. Tindall, CSB #187862 Email: smt@classlawgroup.com GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, California 94612-1406 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 24 25 26 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 13 CASE NO. 5:14-CV-03007-EJD-HRL 1 2 3 4 5 6 Rob Williamson, Admitted Pro Hac Vice Email: roblin@williamslaw.com Kim Williams, Admitted Pro Hac Vice Email: kwilliams@williamslaw.com WILLIAMSON & WILLIAMS 2239 West Viewmont Way, West Seattle, Washington 98199 Telephone: (206) 295-3085 Attorneys for Plaintiffs and the Proposed Class 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF - 14 CASE NO. 5:14-CV-03007-EJD-HRL

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