Ryan v. Jersey Mike's Franchise Systems et al, No. 3:2013cv01427 - Document 54 (S.D. Cal. 2014)
Court Description: ORDER granting Defendants' 45 Motion to Deny Class Certification. Signed by Judge Roger T. Benitez on 3/27/2014. (jah)
Download PDF
<![CDATA[
Ryan v. Jersey Mike&#039;s Franchise Systems et al Doc. 54 fJ 1 2 'II. if 1 \ 28 3: ,I 3 4 os 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SEAN RYAN, an individual, on behalf of himself and all others similarly-situated, 12 13 vs. Plaintiff, CASE NO. 13-CV-1427-BEN (WVG) ORDER GRANTING MOTION TO DENY CLASS CERTIFICATION [Docket No. 45] 18 JERSEY MIKE'S FRANCHISE SYSTEMS-h a New Jerst0'cofP.oration; KENNY BKOTHERS INC. aba JERSEY MIKE'S corporation' CLUB TEX G, INC. dba EZ INC., a New York SK l rOP PARTNERS, LLC, a Delaware limited liability company; and DOES 1 though 50, 19 Defendants. 14 15 16 17 20 21 25 26 27 28 BACKGROUND I. Facts Giving Rise to the Lawsuit Jersey Mike's Franchise Systems (Jersey Mike's) is a franchisor of sandwich shops throughout the United States. Kenny Brothers, Inc. is a Jersey Mike's franchisee which operates a sub sandwich shop in Solana Beach, California. - 1- 13cv1427 Dockets.Justia.com I Jersey Mike's has a customer loyalty program known as the "Jersey Mike's 2 Shore Points" in which it issues customers loyalty cards that they can use to earn and 3 redeem "loyalty points" for free products. Each card has a unique bar code number and 4 is linked in a database to a telephone number provided by the customer when the card 5 is issued. (Mot. at 2; Scherer Decl. 4). Movants state that they do not buy telephone 6 numbers or lists, and that the only numbers in their records are numbers provided by 7 their customers. (Id.; Scherer Dec!. 8 4, 5, 6; Miller Decl. 7). Jersey Mike's and Kenny Brothers state that they send text messages, via 9 Defendant SkyPop Partners, LLC, to customer cellular telephones to advertise ] 0 promotions. (Mot. at 2). They state that messages are only sent to members of the 11 loyalty program who gave their cell phone numbers to Jersey Mike's and its ]2 franchisees. (Id.; Scherer Dec!. 9, Miller Decl. 7). 13 Movants assert that Plaintiff was issued a loyalty card on May 16, 20]3 by a ] 4 server on duty at the Solana Beach store. (Id.) The bar code was linked to Plaintiff's 15 cell phone number. (Id.). Plaintiff admits that he was given a loyalty card on one of 16 his visits to the store. (Ryan Dep., Dawson Decl., Ex. A). 17 Movants state that Jersey Mike's caused a promotional text message to be sent 18 to the cell phones of 7,659 customers of the Solana Beach store on May 28, 2013. 19 Plaintiff was one of the customers who received the text message. The text message 20 advertised that "Jersey Mikes Solana" was having a double loyalty points day, and 21 offered free chips and a drink with the purchase ofany sub. (FAC 23). The message 22 also stated "Reply STOP to opt-out ofMember Texts." (Id.) Plaintiff replied "STOP" 23 to the message, and received no further texts beyond confirmation that no further texts 24 would be sent. (Scherer Decl. 11). 25 II. Allegations in the First Amended Complaint 26 Plaintiff Sean Ryan filed a First Amended Complaint on September 11,2013, 27 seeking damages and injunctive relief on behalf of himself and all others similarly28 situated. (Docket No. ] 7). - 2- 13cv1427 1 Plaintiff alleges that Movants transmit unauthorized bulk spam text messages to 2 the cellular phones ofunwilling customers in order to promote the Solana Beach shop. 3 (FAC 3). Movants allegedly use SkyPop Partners and Club Texting, Inc. to do so. 4 Plaintiff alleges that these text message are aggravating and require consumers to pay 5 their cell phone providers to receive the spam messages. (ld. 5). Plaintiff claims that Movants assembled lists ofconsumer cell phone numbers, 6 7 "without any authorization" to use the numbers. (ld. 20). Plaintiff alleges that the 8 defendants sent "massive amounts of spam commercial text message advertisements, 9 using auto-dialers or robo-callers." (ld. 21). He alleges that Jersey Mike's Franchise 10 Systems has given its express or ostensible consent and authority for the illegal 11 campaign. (ld.) 12 Plaintiff specifically alleges that in May 2013, Movants used an automatic 13 telephone dialing system to send spam commercial text messages to users, including 14 Plaintiff. (ld. 22). Plaintiff alleges that the texts were sent to mobile phone users 15 with whom the defendants had "no prior business relationship." (ld. 24). Plaintiff 16 states that "At no time did Plaintiff consent to the receipt of such text message calls 17 from Defendants or their partners." (Jd. 18 25). Plaintiff states that he brings his action pursuant to Federal Rule of Civil 19 Procedure 23(a), (b)(2), and (b)(3) on behalf of himself and a nationwide class 20 consisting of: "All persons in the United States and its Territories who were sent one 21 22 23 or more unauthorized text message advertisements by or on behalf ofDefendants. " (ld. 26). Plaintiff also states that he brings the action on behalf of himself and a class or 24 sub-class under California Code of Civil Procedure Section 382. This proposed class 25 consists of: "All persons in the State of California who were sent one or more 26 unauthorized text message advertisements by or on behalf ofDefendants." (ld. 27 27). Plaintiff indicates that he might seek to expand or narrow the class definitions 28 following investigation and additional discovery. (Id. -3- 28). 13cv1427 1 III. Plaintiffs Allegations Regarding Provision ofRis Phone Number 2 Review of the Complaint indicates that Plaintiff alleges that the defendants did 3 not have authorization to send the text message, but does not clearly indicate whether 4 Plaintiff ever provided his phone number, or if he alleges that providing the phone 5 number would not authorize the text messages. The provision ofthe phone number is 6 an important factor, as will be discussed below. 7 Plaintiff testified under oath in a deposition concerning his phone number and 8 how he obtained a Jersey Mike's loyalty card. 9 10 11 Q: Did you - did the cashier ask you for your telephone number? A.: No. Q: Did you provide the cashier with your telephone number? A.: No. 12 (Ryan Dep. at 16:3-8). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Q: Did you get the sandwich? A.: Got the sandwich. Q: When did you get the sandwich? A.: I got the sandwich. Then she handed me the card. I gave her the puncfi-out card. She handed me the sandwich and then handed me the card. Q: And no happened, whatsoever. That's your testimony? A.: That's my testImony. Q: Row did Jersey Mike's get your phone number? [Plaintiff's counsel]: Calls for speculation. A: I have no idea. (Ryan Dep. at 24:5-16). Q: And it's your memory that other than taking your order for the and taking your - your card, she didn't say anything else to you, rIght? A: Not to m?: memory, no. Q: She didn t ask you for your phone number? A.: No. (Ryan Dep. at 33: 13-18). 0: So it's your sworn testimony that you never gave Jersey Mike's your p'bone number? A: Yes. 28 (Ryan Dep. at 33:25-34:2). -4- 13cv1427 1 In his Opposition to the Motion to Deny Class Certification, Plaintiff submits a 2 sworn declaration about the provision of his phone number. (Ryan Decl., Docket No. 3 48-7). He states that: 4 5 6 I do not remember ever giving my' phone number to Jersey_Mikes, but I am not 100% sure. I suppose it's fossible. If Jersey' Mike's, at my deposition, would have aSKed me if was "sure" that I aidn't give them my phone number at their store, I would have answered "no" - that I was not sure. 7 (Ryan Decl. 2). Plaintiff further stated that he does not have a practice ofmemorizing 8 or writing down normal interactions with fast food attendants, and that he believes that 9 this makes him a "more typical consumer, not less typical." (Id. 10 11 3). PROCEDURAL HISTORY Plaintiff commenced this action on June 19, 2013 and filed the operative 12 complaint on September 11, 2013. Discovery in this matter was initially limited by the 13 U.S. Magistrate Judge. (Docket No. 33). The Scheduling Order requires Plaintiff to 14 file his Motion for Class Certification by June 9, 2014 and requires that discovery be 15 completed by November 30,2014. (Docket No. 42). LEGAL STANDARD 16 17 I. Class Actions 18 Federal class action lawsuits are authorized by Federal Rule of Civil Procedure 19 23. Members ofa class may sue as representative parties on behalf ofall members only 20 if: (1) the class is so numerous that joinder of all members is impracticable; (2) there 21 are questions of law or fact common to the class; (3) the claims or defenses of the 22 representative parties are typical of the claims or defenses of the class; and (4) the 23 representative parties will fairly and adequately protect the interests ofthe class. FED. 24 R. CIV. P. 23 (a). The party seeking certification must also provide a "workable" class 25 definition by showing that members of the class are identifiable. Connelly v. Hilton 26 Grand Vacations Co., LLC, 294 F.R.D. 574, 576 (S.D. Cal. 2013) (citation omitted). 27 The typicality requirement is to "assure that the interest of the named 28 representative aligns with interests of the class." Hanon v. Dataproducts Corp., 976 -5- 13cv1427 1 F.2d 497, 508 (9th Cir. 1992). In determining whether the typicality requirement is 2 satisfied, a court determines "whether other members have the same or similar injury, 3 whether the action is based on conduct which is not unique to the named plaintiffs, and 4 whether other class members have been injured by the same course ofconduct." Wolin 5 v. Jaguar Land Rover N Am., LLC, 617 F.3d 1168,1175 (9th Cir. 2010) (citation 6 omitted). 7 In addition to satisfying all four ofthe Rule 23(a) requirements, a class must also 8 satisfy one of the Rule 23(b) requirements. Plaintiff asserts Rule 23(b)(2): "the party 9 opposing the class has acted or refused to act on grounds that apply generally to the 10 class, so that final injunctive relief or corresponding declaratory relief is appropriate 11 respecting the class as a whole." Plaintiff also asserts Rule 23(b)(3): "questions oflaw 12 or fact common to class members predominate over any questions affecting only 13 individual members, and that a class action is superior to other available methods for 14 fairly and efficiently adjudicating the controversy." 15 II. Class Action Certification 16 A court is required to determine whether or not to certify the action as a class 17 action at "an early practicable time." FED. R. CIV. P. 23(c)(l)(A). Rule 23 is not a 18 "mere pleading standard" and a party seeking class certification "must affirmatively 19 demonstrate his compliance with the Rule." Wal-MartStores, Inc. v. Dukes, 131 S. Ct. 20 2541, 2551 (2011). It may be necessary for a court to "probe behind the pleadings 21 before coming to rest on the certification question." Id. (citation omitted). In making 22 the class certification determination, a court is required to engage in "rigorous 23 analysis." Id. (citation omitted). That analysis frequently entails "some overlap with 24 the merits of the plaintiffs underlying claim." Id. 25 The Ninth Circuit has approved the use of preemptive motions to deny class 26 certification before a plaintiff has filed a motion to certify a class. Vinole v. 27 Countrywide Home Loans, 571 F.3d 935,941 (9th Cir. 2009). Such motions may be 28 appropriately granted before discovery has been completed. Id. at 942. District courts -6- 13cv1427 1 have "broad discretion" to control the class certification process and have the discretion 2 to determine whether discovery will be permitted. Id. A party seeking class 3 certification is "not always entitled to discovery on the class certification issue." Id. 4 However, "the propriety ofa class action cannot be determined in some cases without 5 discovery." Id. (citation omitted). The "better and more advisable practice" for a 6 district court is to give the litigants an opportunity to present evidence regarding 7 whether a class action is maintainable. Id. (citation omitted). However, "[w]here the 8 necessary factual issues may be resolved without discovery, it is not required." 9 Doninger v. Pac Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977). A motion for 10 class certification has been properly denied without discovery where plaintiffs could 11 not make a prima facie showing ofRule 23's prerequisites or that discovery measures 12 were likely to produce persuasive information substantiating class action allegations. 13 Id. (denial proper where 23(a) requirements could not be met regardless of the 14 discovery undertaken and there was no "reasonable probability" that any ofthe section 15 (b) hurdles could be oyercome). 16 This Court concludes that where a plaintiff has made a sufficient showing that 17 discovery may produce evidence to support the certification ofa class action, this Court 18 will not deny a plaintiff the opportunity to do so. However, if it is apparent from the 19 record before the Court that discovery will not permit a plaintiff to certify the proposed 20 class, this Court will not permit a plaintiff to burden defendants with unnecessary and 21 futile discovery requests. 22 III. Telephone Consumer Protection Act (TCPA) and California Claims 23 Plaintiff asserts claims under TCPA and related California statutes. 24 In relevant part, TCPA makes it illegal to make calls using any automatic 25 telephone dialing system or an artificial prerecorded voice, other than a call for 26 emergency purposes or with the "prior express consent of the called party," to any 27 telephone number assigned to a cellular telephone service or any service for which the 28 called party is charged for the call. See 47 U.S.C. § 227(b)(I)(A). -7- 13cv1427 1 California Business & Professions Code Section 17538.41 prohibits a person or 2 entity conducting business in California from transmitting or causing to be transmitted 3 a text message advertisement. CAL.BuS.&PROF.CODE§ 17538.41(a)(l). The statute 4 has exceptions, including situations where a business has "an existing business 5 relationship with the subscriber ifthe subscriber is offered an option not to receive text 6 messages" from that sender, CAL. Bus. & PROF. CODE § 17538.41(c), or situations 7 where an affiliate of a business that has an "existing relationship with the subscriber, 8 but only ifthe subscriber has provided consent to the business with which he or she has 9 that relationship to receive text messages from affiliates of that business," CAL. Bus. 10 & PROF. CODE § 17538.41(d). DISCUSSION 11 12 I. The Parties' Arguments 13 Movants assert that undisputed facts demonstrate that a class cannot be properly 14 certified in this matter. (Mot. at 1). They contend that amendment and discovery 15 cannot cure the deficiencies. (ld.) Movants do not dispute that a text message is a call 16 for purposes of the TCP A, or that the text was sent with an "automatic telephone 17 dialing system." (ld. at 6). However, Movants assert that they have "prior express 18 consent" to send the promotional text messages. Movants argue that the sole source 19 ofthe phone numbers used by their text-messaging system is the information given to 20 Jersey Mike's when a customer obtains a loyalty card. They contend that this suffices 21 for consent. (ld. at 6-7). 22 Movants argue that Plaintiff's allegations and claims demonstrate that Plaintiff 23 is in a different position than the class he seeks to represent. They argue that the other 24 recipients of the text messages gave prior express consent by providing their phone 25 numbers, but that Plaintiff has claimed that he never gave the defendants his phone 26 number. Since Plaintiff claims he did not provide his phone number, his claims are 27 different than those of other class members. Movants also argue that the class 28 definition does not set forth an identifiable and ascertainable class, that the -8- 13cv1427 I commonality tequirement is not met, that common questions do not predominate, and 2 that the actioq cannot be certified under Rule 23(b)(2). I 3 Plaintiff states in his Opposition and supporting declaration that he does not 4 remember 5 argues that Jersey Mike's his phone number. (Opp'n at 2; Ryan Dec1.). He I inability to remember the details of a specific sandwich transaction I 6 make him typical of the average customer, rather than less. (Id.) He states that 7 he "believes I did not give his phone number up as part ofthat sandwich transaction 8 but, admittedly, he is not sure." (Id. at 3). Plaintiff points out that Movants state that 9 Ryan did give!his phone number and that Movants present "significant evidence" to 10 prove this. (Id.) In reply, Movants argue that Plaintiff is changing his allegations, 11 citing Plaintiff's deposition testimony. 12 Plaintifff states that he requires additional discovery to flesh out the class 13 certification (Id. at 9). Plaintiff specifically points to efforts to obtain 14 information about how phone numbers are selected, obtained, and stored; programming 15 of Jersey Mike's default systems; Jersey Mike's general practices and policies 16 regarding the sending oftext messages to consumers; and the defendants' relationships 17 to one another as it pertains to promotion and marketing campaigns. (Id.) Plaintiff also 18 claims that Jersey Mike's "webinars" will allow Plaintiff to examine the 19 claim that Movants' practices and procedures make Plaintiff "an inexplicable 20 anomaly." (Id. at 10 (citing Mot. at 3:23-28)). 21 II. Plaintiff's Claim Is Not Typical of the Class 22 This Court determines that class certification is inappropriate in this case 23 because Plaintiff cannot represent the class. It appears that Plaintiff has weighed 24 several potential legal theories, and has not yet set forth a proposed class definition in 25 a motion for class certification. It is apparent, however, that Plaintiff cannot represent 26 a class on any of his theories. 27 Plaintiff is fatally inconsistent and uncertain about critical issues relating to 28 consent to receive text messages. These consent issues are critical to any theory of I -9- 13cv1427 1 recovery under the federal and state causes ofaction, both ofwhich provide exceptions 2 from liability (pot necessarily co-extensive) based on consent. This Court has carefully 3 reviewed the tecord in this matter, including the complaint, the briefing, Plaintiff s 4 deposition, ana Plaintiffs declaration in support of his Opposition to this Motion. 5 Plaintift repeatedly and clearly stated under oath in his deposition that he did not 6 provide his phrne number. Plaintiff emphasizes the portions ofthe transcript in which I 7 Plaintiff states he does not remember his conversation with the cashier. However, [ 8 Plaintiff repeatedly and without qualification states that he did not give out his phone 9 number. Plaiti.tiff was clearly aware that he could state that he did not remember a , 10 particular detap, and frequently did so, but indicated no doubt whatsoever that he had 11 not given out hrs phone number. Although he indicated that he did not remember other 12 parts ofthe conversation with the cashier, he did not indicate any doubt about the fact 13 that he did not:provide his phone number. His inability to recall other details has no 14 bearing on his pefinitive statements that he did not provide his cell phone number. 15 Plaintiff[now states, in his motion and in a sworn declaration, that he does not 16 remember if he provided the number, but believes that he did not. This inconsistency 17 and uncertainty renders class action treatment inappropriate. 18 To the Plaintiff seeks, as Movants suggest, to assert claims that 19 individuals wene "spammed" without ever giving their phone number to the defendants, 20 a class cannot qe certified. Plaintiff could not represent a class of individuals who did 21 not give out their phone numbers because he now states that he is not sure that he did 22 not give the defendants his phone number. 23 Plaintiff also cannot represent a class in claims based upon the fact that 24 individuals were improperly defaulted into receiving text messages. The claims about 25 default are premised upon the argument that default was inappropriate for people who 26 provided their number. Plaintiff cannot argue that providing a phone number under 27 these circumstances does not constitute consent for such advertising, while maintaining 28 that he does not: think he gave the number at all. Plaintiff s claim cannot be typical of - 10- 13cv1427 1 a class he doer not believe he belongs to. 2 Plaintiif claims that his inability to be certain makes him more typical of the 3 average consumer. It is indeed quite possible that most people would not remember 4 such a detail. ! However, although this might be typical and quite understandable, it 5 does not makd. Plaintiff an appropriate representative of a class or allow him to assert 6 the rights of 7 on their behalf. In dete$ining whether the typicality requirement is satisfied, a court determines 8 ''whether othet members have the same or similar injury, whether the action is based I 9 on conduct which is not unique to the named plaintiffs, and whether other class 10 members have\been injured by the same course of conduct." Wolin, 617 F.3d at 1175. I 11 Plaintiff is about key interactions which are the basis of the dispute over 12 express conse9t. Even ifPlaintifflearns more in discovery about the course ofconduct 13 to which other potential members ofthe class have been subjected, he himself is unsure 14 whether he war injured by the same course of conduct. Discovery will not allow him 15 to resolve the l,lncertainty regarding his own experience. 16 If Plaintiff is unclear about what actions or statements he made that might I I 17 constitute consent, he cannot properly litigate the question ofwhether other individuals 18 consented the meaning of the relevant statutes. Consent issues are at the very 19 heart ofPlaintirfs claims. This is not simply an sub-issue for which individualized 20 analysis could be conducted while an action proceeds based on other common issues. I 21 The question alhout whether Plaintiff gave his number (or not) calls into question 22 Plaintiffs stan4ing to bring the claim at all. If Plaintiff gave his number, he cannot I 23 bring claims 24 give their numper. If Plaintiff did not give his number, he cannot bring claims 25 premised on th, argument that the company improperly sent messages to people who on the argument that people were wronged because they did not 26 gave their but did not agree to text advertisements. In order to proceed with 27 claims for text ptessages sent without consent, Plaintiff must assert some theory of 28 what happened.: Ifthe class claims were not confined to individuals who had similar \ - 11 - 13cvl427 I interactions wfth the Defendants, maintaining a class action would be inappropriate and 2 unworkable. Connelly, 294 F.R.D. at 577-78 (stating that class certification in 3 TCPA cases iJ warranted only when the unique facts ofa case indicate that individual 4 adjudication df prior express consent is unnecessary and denying class certification I 5 where telephope numbers were obtained under a variety of circumstances). 6 An inatility to remember all details may be typical, but the typicality 7 requirement ofa class action lawsuit demands more. The typicality requirement exists 8 to "assure 9 class." the interest of the named representative aligns with interests of the 976 F.2d at 508. The named plaintiff in a class action carries a great I 10 burden to 11 litigate the rights of others, and failure to properly litigate those claims can hatf innocent class members. "The interests of all in the redress of the 12 wrongs are I into his hands, dependent upon his diligence, wisdom and integrity." 13 Cohen v. BeneflcialIndus. Loan Corp., 337 U.S. 541, 549 (1949). This Court has a 14 responsibility 11<> protect the legal rights ofputative class members by engaging in the , 15 rigorous scruti:q.y required by the Supreme Court before allowing a plaintiffto represent ! 16 others. Plainti(f s conflicting accounts ofcritical facts that will determine what kinds 17 of claims he caln bring means that the necessary alignment of interests is impossible. 18 This Court canhot certify a class with Plaintiff as the named plaintiff. 19 not raised by the parties, likely because the inconsistency arose in 20 Plaintiffs resp+nse brief, the Court notes that Plaintiffs inconsistency on critical facts 21 raises serious chncems about his credibility and his ability to adequately represent the 22 class. See, e.g., Kline v. Wolf, 702 F.2d 400, 403 (2d Cir. 1983) (district court 23 reasonable in 24 attacks on representative status where plaintiffs were vulnerable to serious Jovel v. Boiron, Inc., No. ll-cv-I0803, 2014 WL 1027874, at 25 *4-5 (C.D. Cal. Feb. 27, 2014) (denying class certification where plaintiff gave 26 inconsistent deposition testimony on material issue and plaintiff could jeopardize 27 interests of the other class members if the jury did not believe him). 28 As this COurt has resolved the Motion on typicality grounds, it need not address ! - 12- 13cv1427 1 Movants' I arguments. CONCLUSION 2 3 Upon rciview ofthe briefing filed by the parties and the record in this case, it is I 4 apparent that Ii class cannot be certified in this matter. This Court has considered 5 Plaintiffs to conduct additional discovery and file a motion for class 6 certification. However, it is apparent from the facts before this Court that discovery 7 will not yield 'additional facts that could change this conclusion, and that Plaintiff I 8 cannot define an appropriate class. Although Plaintiff can pursue such claims in an I 9 individual capacity, he cannot serve as a representative of absent class members. The 10 Motion to Deny Class Certification is therefore GRANTED. 11 IT IS SO ORDERED. 12 13 Dated: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - 13cv1427
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
