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Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc.

United States District Court, D. South Carolina, Columbia Division

July 3, 2018

Career Counseling, Inc. d/b/a Snelling Staffing Services, a South Carolina Corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,
v.
Amsterdam Printing & Litho, Inc., Taylor Corporation, John Does 1-10, Defendants.

          ORDER AND OPINION

         Plaintiff brings an action on behalf of itself and all others similarly situated, as a result of Defendants Amsterdam Printing & Litho, Inc. (“Amsterdam”) and Taylor Corporation (“Taylor”) (collectively “Defendants”) sending Plaintiff and the putative class “unsolicited fax advertisements”[1], in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. (ECF No. 1 at 1-2 ¶¶ 1-2.) Before the court is Plaintiff's Amended Motion for Class Certification (ECF No. 117). For the reasons stated herein, the court DENIES WITHOUT PREJUDICE Plaintiff's Amended Motion for Class Certification (ECF No. 117).

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff alleges that Defendants sent Plaintiff at least two (2) unsolicited fax advertisements between June 2015 and December 2015, which violated the TCPA.[2] (ECF No. 1 at 1-2 ¶ 2, 4 ¶ 12.) Plaintiff seeks to certify a class, pursuant to Fed.R.Civ.P. 23(b)(3), [3] based on Amsterdam's transmission of twenty-one (21) faxes to Plaintiff and the proposed class between June 2015 and December 2015. (ECF No. 117-1 at 2.) Plaintiff alleges the fax advertisements were unsolicited because “[it] had not invited or given permission to Defendants to send the fax[es].” (ECF No. 1 at 4 ¶ 14.) Plaintiff seeks relief expressly authorized by the Junk Fax Protection Act of 2005, Pub. L. No. 109-21, 119 Stat. 359 (codified at 47 U.S.C. § 227) (“JFPA”), which amended the TCPA. (Id. at 2-3 ¶ 5.) More specifically, Plaintiff seeks “(1) injunctive relief enjoining Defendants, their employees, agents, representatives, contractors, affiliates, and all persons and entities acting in concert with them, from sending unsolicited advertisements in violation of the JFPA; and (2) an award of statutory damages in the minimum amount of $500 for each violation of the JFPA, and to have such damages trebled, as provided by § 227(b)(3) of the TCPA.” (Id.)

         Plaintiff asserts that Defendants successfully sen[t] 252, 549 fax advertisements through fax broadcaster WestFax, Inc. (ECF No. 117-1 at 1-2.) Plaintiff also asserts that “Amsterdam can identify through its corporate records the targets to whom the [twenty-one] faxes were successfully sent [that are the subject of this motion].” (Id. at 10.) Because Amsterdam is able to ascertain the persons or entities targeted by the faxes, Plaintiff asserts that a class is ascertainable. (Id. at 3.)

         On December 28, 2015, Plaintiff filed its Complaint. (ECF No. 1.) On January 4, 2016, Plaintiff filed a Motion to Certify a Class (ECF No. 6). Judge Cameron McGowan Currie stayed all briefing on Plaintiff's Motion until after the initial scheduling conference. (ECF No. 7.) Defendants filed a response to Plaintiff's Motion on March 17, 2016. (ECF No. 21.) On March 23, 2016, the case was reassigned to the undersigned. (ECF No. 23.) On June 29, 2016, the court held a hearing (ECF No. 47) on Plaintiff's Motion to Certify a Class (ECF No. 6), and on July 12, 2016, the court denied Plaintiff's Motion without prejudice and with leave to refile. (ECF No. 48.)[4]

         On May 12, 2017, Plaintiff refiled its Motion for Class Certification. (ECF No. 68.) On June 8, 2017, Defendants responded (ECF No. 75), and on June 30, 2017, Plaintiff replied (ECF No. 85). On August 23, 2017, the court granted the Parties' Consent Motion for Leave to Supplement Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification (ECF No. 88). (ECF No. 89.) The same day, Defendants filed a Supplemental Response to Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification (ECF No. 91), to which Plaintiff replied (ECF No. 93.)[5]

         On November 2, 2017, a hearing was scheduled for December 1, 2017, in regard to Plaintiff's Motion for Class Certification (ECF No. 68) and Defendants' Motion for Summary Judgment (ECF No. 69).[6] (ECF No. 96.) On November 16, 2017, the court granted Defendants' Second Unopposed Motion for Leave to Supplement Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification (ECF No. 99). (ECF No. 100.) The same day, Defendants filed a Second Supplemental Response to Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification (ECF No. 102), to which Plaintiff replied (ECF No. 103.)

         On November 27, 2017, Plaintiff filed an Unopposed Motion for Leave to File Response to Defendants' Second Supplement to Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification. (ECF No. 104.) On November 28, 2017, the court granted this Motion (ECF No. 105), and Plaintiff filed its Response (ECF No. 106). On December 1, 2017, the court held a hearing on Plaintiff's Motion for Class Certification (ECF No. 68) and Defendants' Motion for Summary Judgment (ECF No. 69). (ECF No. 109.)

         On March 27, 2018, Defendants filed a Third Motion for Leave to Supplement Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification. (ECF No. 112.) On the same day, the court granted Defendants' Motion (ECF No. 112), and due to the complexity and amount of supplemental information filed by the parties, the court also denied without prejudice Plaintiff's Motion for Class Certification (ECF No. 68) and Defendants' Motion for Summary Judgment (ECF No. 69). (ECF No. 113.) The court directed the parties to refile their respective motions and to consolidate any supplemental caselaw or arguments in the parties' respective memorandums of law within fourteen (14) days of the court filing its Order. (Id.) On April 10, 2018, Plaintiff filed its Amended Motion for Class Certification (ECF No. 117). On April 24, 2018, Defendants responded. (ECF No. 119.)

         II. JURISDICTION

         The court has jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiff brings its claim pursuant to the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(C). (See ECF No. 1 at 3 ¶ 6).

         III. LEGAL STANDARD

         The United States Court of Appeals for the Fourth Circuit has held that a class cannot be certified if the class members are not identifiable or ascertainable, stating “. . . Rule 23 contains an implicit threshold requirement that the members of a proposed class be ‘readily identifiable.'” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (quoting Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972)); see also Solo v. Bausch & Lomb Inc., No. 2:06-CV-02716-DCN, 2009 WL 4287706, at *4 (D.S.C. Sept. 25, 2009) (“[A]s a preliminary matter, the court must consider the definition of the class when determining the appropriateness of class certification.”) (citing Kirkman v. North Carolina R. Co., 220 F.R.D. 49, 53 (M.D. N.C. 2004)).

         In addition to demonstrating ascertainability, the party seeking class certification bears the burden of demonstrating that it meets the requirements of Rule 23. See, e.g., Romig v. Pella Corporation, 2016 WL 3125472, at *3 (D.S.C. June 3, 2016). Rule 23(a) provides that certification is only proper if: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”

Once these prerequisites are met, the proposed class must still satisfy one of three additional requirements for certification under Rule 23(b). See EQT Prod. Co., 764 F.3d at 357 (quoting Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003)). Plaintiff seeks certification under Rule 23(b)(3); therefore, Plaintiff must show that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods of fairly and efficiently adjudicating the controversy.” (emphasis added). “The predominance requirement is similar to but “more stringent” than the commonality requirement of Rule 23(a). Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006) (quoting Lienhart v. Dryvit Sys., 255 F.3d 138, 146 n.4 (4th Cir. 2001)).

         A party must produce enough evidence to demonstrate that class certification is in fact warranted. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). If one of the requirements necessary for class certification is not met, Plaintiff's efforts to certify a class must fail. See Clark v. Experian Information Solutions, Inc., 2001 WL 1946329, at *4 (D.S.C. March 19, 2001) (citing Harriston v. Chicago Tribune Co., 992 F.2d 697, 205 (7th Cir. 1993)).

         The court must go beyond the pleadings, taking a “close look” at relevant matters, conducting “a rigorous analysis of such matters, ” and making “findings” that the requirements of Rule 23 have been satisfied. See Gariety v. Grant Thornton, LLP, 368 F.3d 356, 365 (4th Cir. 2004) (citations omitted).[7] While the court should not “include consideration of whether the proposed class is likely to prevail ultimately on the merits, id. at 366 (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177-78 (1974)), “sometimes it may be necessary for the district court to probe behind the pleadings before coming to rest on the certification question.” Id. (citing Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982)).

         IV. ANALYSIS

         I. Telephone Consumer Protection Act

         “Voluminous consumer complaints about abuses of telephone technology-for example, computerized calls dispatched to private home-prompted Congress to pass the TCPA.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71 (2012). ‚ÄúCongress determined that federal legislation was needed because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls. The TCPA bans certain practices invasive of ...


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