Eric Davis v. AT&T Services, Inc., No. 3:2015cv02342 - Document 69 (S.D. Cal. 2017)

Court Description: ORDER Denying 60 Plaintiff's Motion for Class Certification. Signed by Judge Dana M. Sabraw on 3/28/2017. (aef)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ERIC DAVIS, on behalf of himself and all others similarly situated,, 15 16 ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION Plaintiff, 13 14 Case No.: 15cv2342-DMS (DHB) v. AT&T CORP., a corporation,, Defendant. 17 18 This matter comes before the Court on Plaintiff’s motion for class certification. 19 Defendant AT&T Services, Inc. filed an opposition to the motion, and Plaintiff filed a 20 reply. The motion came on for hearing on February 24, 2017. Kira Rubel, Scott Owens 21 and Alanna Pearl appeared on behalf of Plaintiff, and Hans Germann and John Nadolenco 22 appeared on behalf of Defendant. 23 arguments of counsel, the Court denies the motion. Having carefully considered the pleadings and 24 I. 25 BACKGROUND 26 This case arises under the Telephone Consumer Protection Act (“TCPA”). Plaintiff 27 Eric Davis alleges that beginning in June 2013 and continuing through approximately 28 December 2015, Defendant called his cellular telephone inquiring about an AT&T U-Verse 1 15cv2342-DMS (DHB) 1 account. Plaintiff has never had an account with AT&T, and during at least two of those 2 phone calls he told Defendant’s agent they had the wrong number. Nevertheless, the calls 3 continued. 4 On October 16, 2015, Plaintiff filed the present case alleging one claim for negligent 5 violation of the TCPA and another claim alleging willful violation of the TCPA. In the 6 original Complaint, and the three Amended Complaints that followed, Plaintiff purported 7 to represent the following class of individuals: 8 All persons within the United States who received any telephone call from Defendant or its agents to his or her cellular telephone through the use of any ATDS and/or with an artificial or pre-recorded voice, without their prior express consent, within the four years prior to the filing of the Complaint in this action whose phone number was obtained by skip tracing or through other third parties. 9 10 11 12 13 On September 16, 2016, Plaintiff filed a motion for leave to amend the scheduling 14 order so he could file a Fourth Amended Complaint that set forth a different proposed class. 15 That class was defined as: 16 All persons within the United States who had or have a number assigned to a cellular telephone service and received at least two telephone calls from Defendant or its agents through the use of any ATDS and/or with an artificial or pre-recorded voice, without their prior express consent, within the four years prior to the filing of the Complaint in this action who were not customers of Defendant at the time of the calls, where Defendant’s records indicate that prior to the second and/or any subsequent call, the call recipient indicated that Defendant had reached a “wrong number” or similar notation in Defendant’s customer account records. 17 18 19 20 21 22 23 The Court denied that motion, finding Plaintiff had failed to show the good cause required 24 by Federal Rule of the Civil Procedure 16(b). In particular, Plaintiff failed to explain the 25 delay in filing his motion given his knowledge of the facts and his filing of several amended 26 complaints. 27 /// 28 /// 2 15cv2342-DMS (DHB) 1 Plaintiff now moves for class certification, but not for the class proposed in his Third 2 Amended Complaint. Rather, Plaintiff moves to certify the class proposed in his Fourth 3 Amended Complaint, which was not accepted for filing. 4 II. 5 DISCUSSION 6 Plaintiff asserts the class set out in his proposed Fourth Amended Complaint meets 7 the requirements of Federal Rules of Civil Procedure 23(a), (b)(2) and (b)(3). Defendant 8 disputes that any of the requirements for class certification are met. It also argues the class 9 Plaintiff seeks to represent is different from the one set out in the operative Complaint, and 10 thus not subject to certification. 11 A. The Proposed Class 12 District courts in the Ninth Circuit have taken different approaches to whether a court 13 may certify a class other than the one described in the complaint. In Berlowitz v. Nob Hill 14 Masonic Mgmt., Inc., No. C-96-01241 MHP, 1996 U.S. Dist. LEXIS 22599 (N.D. Cal. 15 Dec. 6, 1996), the court declined to do so, stating it was “bound by the class definition 16 provided in the Complaint[,]” and that it would “not consider certification of the class 17 beyond the definition provided in the complaint unless plaintiffs choose to amend it.” Id. 18 at *6. See also Costelo v. Chertoff, 258 F.R.D. 600, 604-05 (C.D. Cal. 2009) (citing 19 Berlowitz) (same). Other courts have taken a more nuanced approach and agreed to 20 consider certification of a class other than that described in the complaint if “the proposed 21 modifications [to the class definition] are minor, require no additional discovery, and cause 22 no prejudice to defendants.” In re: TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 23 590-91 (N.D. Cal. 2010). See also Van Patten v. Vertical Fitness, No. 12cv1614-LAB 24 (MDD), 2013 U.S. Dist. LEXIS 189845, at * 7-11 (S.D. Cal. Nov. 8, 2013) (agreeing to 25 consider modified class definition because there was no prejudice to defendant). While 26 not described as “minor,” courts have considered certification of an amended class if it is 27 narrower than the class alleged in the complaint. Abdeljalil v. General Electric Capital 28 Corp., 306 F.R.D. 303, 306 (S.D. Cal. 2015); Knutson v. Schwan’s Home Services, Inc., 3 15cv2342-DMS (DHB) 1 No. 3:12-cv-0964-GPC-DHB, 2013 U.S. Dist. LEXIS 127032, at *10-13 (S.D. Cal. Sep. 2 5, 2013). See also Wolf v. Hewlett Packard Co., No. CV 15-01221 BRO (GJSx), 2016 3 U.S. Dist. LEXIS 18122, at *21-22 (C.D. Cal. Sep. 1, 2016) (considering revised class 4 definition because it was “narrower than the definition in the operative complaint,” and 5 there was “no lack of diligence on the part of Plaintiff[.]”) 6 Here, Plaintiff argues the class he seeks to certify falls within the “narrowing” 7 exception and is therefore appropriate for consideration. Defendant disagrees, and asserts 8 the class at issue here is an entirely different class, not a narrower version of the one alleged 9 in the Complaint. 10 In each of his Complaints, Plaintiff defined the class as follows: 11 All persons within the United States who received any telephone call from Defendant or its agents to his or her cellular telephone through the use of any ATDS and/or with an artificial or pre-recorded voice, without their prior express consent, within the four years prior to the filing of the Complaint in this action whose phone number was obtained by skip tracing or through other third parties. 12 13 14 15 16 (emphasis added). The class he now seeks to certify is entirely re-worked, and defined as: 17 All persons within the United States who had or have a number assigned to a cellular telephone service and received at least two telephone calls from Defendant or its agents through the use of any ATDS and/or with an artificial or pre-recorded voice, without their prior express consent, within the four years prior to the filing of the Complaint in this action who were not customers of Defendant at the time of the calls, where Defendant’s records indicate that prior to the second and/or any subsequent call, the call recipient indicated that Defendant had reached a “wrong number” or similar notation in Defendant’s customer account records. 18 19 20 21 22 23 24 (emphasis added). 25 The amended proposed class definition is similar to that proposed in Abdeljalil, 26 wherein the court agreed to consider a proposed class different from that alleged in the 27 complaint. The proposed class in Abdeljalil was defined as follows: 28 /// 4 15cv2342-DMS (DHB) 1 All persons within the United States who had or have a number assigned to a cellular service, who received at least two calls using an automatic telephone dialing system and/or an artificial or pre-recorded voice from Defendant or its agents between August 22, 2008 and August 22, 2012 for debt collection purposes, who were not customers of Defendant at the time of the calls, where Defendant’s customer account records indicate that prior to the second and any subsequent calls that said person were non-account holders as identified by one or more of the following terms in Defendant’s electronic customer account records: “wrong number,” “wrong telephone number,” “third party contact,” “wrong party,” “wrong party number,” or “wrong party telephone number.” 2 3 4 5 6 7 8 9 10 11 306 F.R.D. at 306. Plaintiff relies heavily on Abdeljalil in arguing for the same result here: consideration of the newly proposed class. However, this case is distinguishable from Abdeljalil. There, the plaintiff initially proposed the following expansive class: 12 15 All persons within the United States who received any telephone call/s from Defendant or their agents and/or employee/s to said person’s cellular telephone made through the use of any automatic telephone dialing system or with an artificial or pre-recorded voice within the four years prior to the filing of the Complaint. 16 Abdeljalil, Case No. 12cv2078, Docket No. 34 at 6. Based on this broad definition, the 17 court found the amended proposed class was “simply a narrower version of the class 18 definition presented in the TAC, which is allowable.” Abdeljalil, 306 F.R.D. at 306. 13 14 19 Here, by contrast, the class proposed in the Complaints is not as broad. Rather, it is 20 specifically limited by the condition that the class member’s phone number “was obtained 21 by skip tracing or through other third parties.” That this condition has been removed from 22 the amended proposed class definition does not automatically make it a narrower class. 23 Instead, that condition has been replaced with a number of other conditions, namely, 24 whether the consumer was a customer of Defendant, whether that consumer indicated to 25 Defendant that it called a “wrong number,” and whether the consumer received another 26 /// 27 /// 28 /// 5 15cv2342-DMS (DHB) 1 call after so indicating. This proposed class is not simply a narrower version of that 2 proposed in the Complaints. It is an entirely different class. 1 Plaintiff’s reliance on Knutson is similarly misplaced. In that case, as in Abdeljalil, 3 4 the plaintiff initially proposed a class of: 5 All persons within the United States who received any telephone call from Defendant or its agent/s and/or employee/s to said person’s cellular telephone made through the use of any automatic telephone dialing system or with an artificial or prerecorded voice, which call was not made for emergency purposes or with the recipient’s prior express consent, within the four years prior to the filing of this Complaint. 6 7 8 9 10 2013 U.S. Dist. LEXIS 127032, at *7. The amended proposed class added a new condition, 11 namely that the class members be “past or present members of Nutrisystem, Inc.” Id. Like 12 the Abdeljalil court, the Knutson court found the amended proposed class was “more 13 limited” than that proposed in the complaint. Id. As explained above, the facts of this case 14 do not fit that rationale. 15 Furthermore, at oral argument defense counsel explained the class proposed in 16 Plaintiff’s Complaints would be non-existent as Defendant does not obtain any numbers 17 through skip-tracing. On this basis, Defendant argued it was impossible for Plaintiff’s 18 amended proposed class to be narrower than the class of zero proposed in the Complaints. 19 Although Defendant did not present any evidence to support this argument, Plaintiff did 20 not dispute it, and the logic is infallible. If the class proposed in the Complaints would 21 have had zero members, then the amended proposed class could not have been narrower 22 than a class of zero. 23 /// 24 25 26 27 28 This conclusion is supported by Magistrate Judge Bartick’s Order denying Plaintiff’s motion to compel discovery. (See Docket No. 39.) There, Judge Bartick rejected Plaintiff’s argument that “wrong number” calls were encompassed within the class definition alleged in the Complaint. 1 6 15cv2342-DMS (DHB) 1 Plaintiff also argues Defendant would not be prejudiced if the Court were to consider 2 the class, as amended. Defendant did not address this issue in its brief, but confirmed at 3 oral argument that it would be prejudiced if the Court were to consider the amended class. 4 During discovery, Defendant objected to discovery requests seeking information on 5 “wrong number” calls on the ground that information was irrelevant. Magistrate Judge 6 Bartick sustained that objection, and thus, the parties did not conduct discovery on any 7 “wrong number” calls. Indeed, Plaintiff admits “[t]he outcome of this motion for class 8 certification will decide whether Plaintiff is entitled to these records or not.” (Mem. of P. 9 & A. in Supp. of Mot. at 12 n.10.) Thus, if the Court were to consider Plaintiff’s amended 10 class, discovery on the “wrong number” class would have to be reopened, which would 11 impose additional costs and expenses on the parties and further delay this case. 2 12 Each of the factors mentioned above, i.e., the nature of the modification to the class 13 definition (a completely different class), whether additional discovery is required (yes) and 14 whether Defendant will be prejudiced (yes), weigh in favor of declining to address the 15 amended class in this case. The Court’s decision to deny Plaintiff’s motion to amend the 16 scheduling order also weighs in favor of that outcome. There, the Court found Plaintiff 17 failed to show good cause, i.e., he was not diligent, in seeking leave to amend the 18 scheduling order to extend the deadline to file a motion for leave to amend the complaint 19 a fifth time to assert the class proposed in the present motion. Consideration of that class 20 now would render the Court’s previous decision a nullity, and would simply provide 21 Plaintiff with an end-run around that decision. This the Court declines to do. However, 22 even if the Court were to consider the amended class, Plaintiff has not shown the 23 requirements for certification are met, as explained below. 24 B. Rule 23(b)(3) Assuming without deciding that Rule 23(a)’s four prerequisites for class certification 25 26 27 28 2 Plaintiff’s original Complaint was filed on October 16, 2015, over 17 months ago. 7 15cv2342-DMS (DHB) 1 --numerosity, commonality, typicality, and adequacy of representation--are satisfied, the 2 amended class fails to satisfy the requirements of Rule 23(b)(3). Class certification under 3 Rule 23(b)(3) is proper “whenever the actual interests of the parties can be served best by 4 settling their differences in a single action.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 5 1022 (9th Cir. 1998) (internal quotations omitted). Rule 23(b)(3) calls for two separate 6 inquiries: (1) do issues of fact or law common to the class “predominate” over issues unique 7 to individual class members, and (2) is the proposed class action “superior” to other 8 methods available for adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). In adding 9 the requirements of predominance and superiority to the qualifications for class 10 certification, “the Advisory Committee sought to cover cases ‘in which a class action 11 would achieve economies of time, effort, and expense, and promote … uniformity of 12 decisions as to persons similarly situated, without sacrificing procedural fairness or 13 bringing about other undesirable results.’’’ Amchem Prods. v. Windsor, 521 U.S. 591, 615 14 (1997) (quoting Fed. R. Civ. P. 23(b)(3) advisory committee notes). 15 A “central concern of the Rule 23(b)(3) predominance test is whether ‘adjudication 16 of common issues will help achieve judicial economy.’’’ Vinole v. Countrywide Home 17 Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009) (quoting Zinzer v. Accufix Research Inst., 18 Inc., 253 F.3d 1180, 1189 (9th Cir. 2001)). Thus, courts must determine whether common 19 issues constitute such a significant aspect of the action that “there is a clear justification for 20 handling the dispute on a representative rather than on an individual basis.” 7A Charles 21 Alan Wright, et al., Federal Practice and Procedure § 1778 (3d ed. 2005). 22 predominance inquiry under Rule 23(b) is rigorous, Amchem, 521 U.S. at 624, as it “tests 23 whether proposed classes are sufficiently cohesive to warrant adjudication by 24 representation.” Id. at 623. The 25 Plaintiff asserts the predominance requirement is met here. In support of that 26 assertion, he points to issues he believes are common to the class, such as whether the calls 27 were made to cellular phones, whether Defendant used an ATDS, and whether Defendant 28 can prove it had prior express consent for the calls. Defendant disputes whether some of 8 15cv2342-DMS (DHB) 1 these issues are common to the class, but argues primarily that individual issues 2 surrounding consent will predominate over any common issues. 3 The Ninth Circuit has held that “[e]xpress consent is not an element of a plaintiff’s 4 prima facie case but is an affirmative defense for which the defendant bears the burden of 5 proof.” Van Patten v. Vertical Fitness Group, 847 F.3d 1037, 2017 U.S. App. LEXIS 6 1591, at *13 (9th Cir. Jan. 20, 2017). Defendant here relies on the affirmative defense, and 7 asserts it can meet its burden to show consent by reference to its customer account records. 8 Defendant contends the phone numbers in its records, and the phone numbers that it called, 9 were obtained from its customers, which is prima facie evidence of prior express consent. 10 Plaintiff makes a related but distinct argument. He asserts lack of consent is an issue 11 common to the class, and that lack of consent can be proved through common evidence. 12 In essence, Plaintiff argues that a notation in Defendant’s records to the effect of “wrong 13 number” is sufficient to establish on a class-wide basis without individualized inquiry that 14 Defendant made a call to a number it did not have consent to call. However, “wrong 15 number” notations would not absolutely resolve this issue. The parties would still have to 16 go through the “wrong number” notations to determine whether those call recipients were, 17 in fact, customers of Defendant at or before the time of the calls. Defendant has come 18 forward with evidence that a call with a “wrong number” notation proves nothing because 19 many customers tell callers they have reached the wrong number, though the customer’s 20 number was dialed, as a “procrastination tool” to avoid speaking on the phone. (Opp’n Br. 21 At 12, Ex. E (Carter Dep. at 47-48)) (“[I]t is a very common experience for the customers 22 to say you have the wrong number, and it’s not the wrong number,” “it happens every day,” 23 and “[e]very outbound organization in the world knows that.”) 24 A search of Defendant’s records also will not reveal whether the call recipients who 25 claimed “wrong number” were customers of Defendant who gave their prior express 26 consent to be called. Plaintiff argues his expert could “[c]onduct a reverse number lookup 27 to determine who these numbers belonged to at the time of the calls[,]” (Reply at 11), but 28 he fails to explain how the results of that search will be determinative of consent or lack 9 15cv2342-DMS (DHB) 1 thereof. Even if Defendant made a call to a person who was not a customer at the time of 2 the call, that would not eliminate the need for an individualized inquiry to determine 3 whether that person was a past customer and thus, had previously provided consent to be 4 called. 5 prerecorded voice collection calls to former customers who have amounts owing. See Van 6 Patten v. Vertical Fitness Group, LLC 22 F. Supp. 2d 1069, 1077-78 (S.D. Cal. 2014) 7 (cancellation of gym membership did not terminate consent). In those circumstances, Defendant can continue to make automated and/or 8 Likewise, if Defendant’s customer provided a number belonging to another person, 9 such as a spouse or other family member, an inquiry into that customer’s authority to 10 provide consent to call that number would be required. See, e.g., Gutierrez v. Barclays 11 Group, No. 10cv1012-DMS (BGS), 2011 U.S. District. LEXIS 12546, at *8-9 (S.D. Cal. 12 Feb. 9, 2011) (quoting United States v. Matlock, 415 U.S. 164, 171 (1974)) (husband can 13 provide consent for subscriber wife, if he “‘possessed common authority over or other 14 sufficient relationship to the’” phone). 15 In sum, a complete analysis of the customer status issue would require an inquiry 16 into each call recipient’s individual circumstances. Plaintiff fails to explain how these 17 individualized inquiries could be performed via class-wide proof, and thus fails to show 18 that common issues would predominate over individualized inquiries. See True Health 19 Chiropractic, Inc. v. McKesson Corp., No. 13cv02219-HSG, 2016 U.S. Dist. LEXIS 20 111657, at *13-14 (N.D. Cal. Aug. 22, 2016) (finding predominance requirement not 21 satisfied where plaintiffs failed to “offer[] their own satisfactory method of establishing a 22 lack of ‘express permission’ via class-wide proof.”); Shelby v. LVNV Funding, LLC, No. 23 13cv1383-BAS(BLM), 2016 U. S. Dist. LEXIS 83940, at *31-36 (S.D. Cal. June 22, 2016) 24 (finding predominance requirement not satisfied where “individualized inquiries will be 25 necessary to determine whether particular class members gave prior express consent.”) 26 C. Rule 23(b)(2) 27 Finally, Plaintiff devoted two paragraphs in his twenty-five page opening brief as to 28 why the amended proposed class should be certified under Federal Rule of Civil Procedure 10 15cv2342-DMS (DHB) 1 23(b)(2). (See Mem. of P. & A. in Supp. of Mot. at 18-19.) Under Rule 23(b)(2), class 2 certification may be appropriate where a defendant acted or refused to act in a manner 3 applicable to the class generally, rendering injunctive and declaratory relief appropriate to 4 the class as a whole. Fed. R. Civ. P. 23(b)(2). 5 Here, Plaintiff mentioned his request for injunctive relief in his Complaint, but he 6 did not specify the injunctive relief requested. More specificity is provided in the present 7 motion where Plaintiff states he is seeking an injunction “prohibiting Defendant from 8 making autodialed calls to consumers’ cellular telephone numbers who have stated that 9 Defendant reached the wrong number[.]” (Mem. of P. & A. in Supp. of Mot. at 19.) Those 10 specifics, however, do not warrant certification under Rule 23(b)(2) because an injunction 11 to that effect would not provide relief to the amended proposed class. As explained above, 12 the amended proposed class is not limited to consumers who received an autodialed call 13 from Defendant on their cellular phone and stated “wrong number.” Rather, to be a 14 member of the proposed amended class, the person called must not have been a customer 15 of Defendant, must have received an autodialed call from Defendant on their cellular 16 phone, stated “wrong number” or something to that effect, and then received another 17 autodialed call from Defendant. Because the injunctive relief proposed in Plaintiff’s 18 motion would not provide relief to the amended proposed class, Plaintiff would not be 19 entitled to certification under Rule 23(b)(2). 20 III. 21 CONCLUSION 22 For these reasons, Plaintiff’s motion for class certification is denied. 23 IT IS SO ORDERED. 24 Dated: March 28, 2017 25 26 27 28 11 15cv2342-DMS (DHB)