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David M. Emanuel, Individually and On v. Nfl Enterprises

January 20, 2012

DAVID M. EMANUEL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
NFL ENTERPRISES, LLC, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion to Intervene filed by Cellco Partnership d/b/a Verizon Wireless ("Verizon Wireless"). (ECF No. 14).

I. Background

On August 10, 2011, Plaintiff David M. Emanuel initiated this action by filing the Complaint on behalf of himself and all others similarly situated against Defendant NFL Enterprises LLC ("NFL"). (ECF No. 1). On October 25, 2011, Plaintiff filed a First Amended Complaint. (ECF No. 12). Plaintiff alleges that he "maintains cellular service through a common cellular telephone service provider." Id. at ¶ 18. Plaintiff alleges that on April 25, 2011, "NFL sent Plaintiff an unsolicited text message ... advertising additional promotional products offered by Defendant NFL." Id. at ¶19. Plaintiff alleges that he was sent a second unsolicited text message. Id. Plaintiff alleges that the unsolicited text messages were received on his cellular telephone and were sent by an automatic telephone dialing system. Plaintiff alleges that the "'from' field of the transmission was identified cryptically as '5504,' a format which Plaintiff later learned was an abbreviated telephone number known as an SMS short code." Id. at ¶ 20. Plaintiff alleges: "That short code is owned by Plaintiff's cellular telephone provider and Defendant [NFL]'s agent for use in their SMS text messaging promotional campaigns." Id. Plaintiff alleges that "[t]he telephone number that the Defendant [NFL], or its agents, called was assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls ...." Id. at ¶ 25. Plaintiff asserts a claim of negligent violations of the Telephone Consumer Protection Act and a claim of knowing or willful violations of the Telephone Consumer Protection Act pursuant to 47 U.S.C. § 227.

On November 14, 2011, Defendant NFL filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, or, in the alternative, to stay the case pending arbitration. (ECF No. 13).

On November 18, 2011, Verizon Wireless filed a Motion to Intervene pursuant to Federal Rule of Civil Procedure 24. (ECF No. 14). Verizon Wireless seeks to intervene as a defendant in this case as a matter of right or pursuant to permissive intervention. Verizon Wireless contends that Plaintiff is a customer of Verizon Wireless. Verizon Wireless contends that Defendant NFL "is not a party to the Customer Service Agreement between Plaintiff and Verizon Wireless." (ECF No. 41-1 at 7). Verizon Wireless contends that it sent the text messages to Plaintiff. Verizon Wireless contends that it "has a strong interest in defending its conduct, which it believes was entirely lawful ...." Id. Verizon Wireless contends that Defendant NFL will not adequately represent Verizon Wireless's interests in this matter.

On November 23, 2011, the parties filed a Joint Motion to Extend the Time to Respond to the Motion to Dismiss. (ECF No. 17). The Court vacated the hearing date for the Motion to Dismiss due to the pending Motion to Intervene. (ECF No. 18).

On January 3, 2012, Defendant NFL filed a response in support of Verizon Wireless's Motion to Intervene. (ECF No. 22).

On January 3, 2012, Plaintiff filed a "Non-Opposition to [Verizon Wireless's] Motion to Intervene Subject to Plaintiff's Evidentiary Objections." (ECF No. 23). Plaintiff does not oppose Verizon Wireless's request to intervene as a Defendant in this case. However, Plaintiff states:

Plaintiff objects to Verizon's filing of a redacted "Promotional Rights Agreement," purported to be 54 pages. Verizon only provides three, mostly redacted, pages of a promotional rights agreement that purports to exist between Verizon and the NFL. This documents (sic) goes to the heart of Verizon's argument in its Motion to Intervene, and their anticipated motions to Compel Arbitration and/or to Dismiss. It is fundamentally unfair to provide only three pages (mostly redacted) of a 54-page document which is relevant to all Verizon's and/or the NFL's arguments that Verizon has a right to intervene, that this case should be ordered into arbitration, or summarily dismissed.

Plaintiff requests that the Court order Verizon and/or the NFL to produce a complete copy of this unredacted document (Ex. A to the Decl. of Barry), either prior to the hearing on Verizon's Motion to Intervene or prior to the filing of any future Motion to Compel Arbitration and/or Motion to Dismiss. (ECF No. 23 at 2).

On January 9, 2012, Defendant NFL filed a Motion to Compel Arbitration and Stay

Proceeding Pending Arbitration. (ECF No. 24).

On January 17, 2012, Verizon Wireless filed a Reply in support of the Motion to Intervene. (ECF No. 25). Verizon Wireless contends that Plaintiff's "'evidentiary objection' effectively amounts to a premature and procedurally improper motion ...


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