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Knutson v. Schwan's Home Service, Inc.

United States District Court, Ninth Circuit

September 5, 2013

ERIK KNUTSON and KEVIN LEMIEUX, individually and on behalf of all others similarly situated, Plaintiffs,


GONZALO P. CURIEL, District Judge.


This is a class action lawsuit in which Erik Knutson ("Knutson") and Kevin Lemieux ("Lemieux") (together, "Plaintiffs") allege Schwan's Home Service, Inc. ("Schwan's") and Customer Elation, Inc. ("Customer Elation") (together, "Defendants") have violated the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq., ("TCPA"). Presently before the Court is Plaintiffs' Motion for Class Certification, (ECF No. 65), which has been fully briefed, (ECF Nos. 89, 96), and which the Court finds suitable for disposition without oral argument, see CivLR 7.1.d.1. For the reasons that follow, the Court will DENY Plaintiffs' request to certify a Rule 23(b)(2) class and GRANT Plaintiffs' request to certify a Rule 23(b)(3) class.


Schwan's is in the business of delivering frozen foods to residential customers. From November 2008 through November 13, 2011, Schwan's contracted with non-party Nutrisystem, Inc. ("Nutrisystem") to deliver weight-loss food to Nutrisystem customers on Schwan's routes. Pursuant to this arrangement, Nutrisystem gave Schwan's the telephone numbers, addresses, and other information that Nutrisystem customers provided to Nutrisystem in connection with their orders for Nutrisystem products. During the course of their relationship, Nutrisystem provided Schwan's with approximately 195, 000 phone numbers-some of which were cell phone numbers.

Schwan's delivery routes are on fixed schedules. When Schwan's is unable to make a delivery, Schwan's attempts to notify its customers that their delivery must be rescheduled. Because Nutrisystem customers were placed on Schwan's ordinary delivery routes, Nutrisystem customers would receive rescheduling calls as if they were regular Schwan's customers.

Before November 2009, Schwan's placed these calls from its own customer service center. Beginning in November 2009, Schwan's outsourced these calls to Customer Elation. Pursuant to its arrangement with Customer Elation, Schwan's electronically notifies Customer Elation when a call must go out, and a Schwan's computer system generates a listing of telephone numbers associated with customers on the affected routes. Customer Elation then calls the customers to inform them their routes have been rescheduled using an automatic telephone dialing system ("ATDS") and a prerecorded message.

Schwan's estimates that, from April 2008 through November 2009, it made approximately 3.9 million autodialed/prerecorded calls to customers throughout the nation-some of which were made to Nutrisystem customers. Schwan's records show whether a call was completed, and Customer Elation has records for all calls made since November 2009.

Before and after the arrangement between Schwan's and Nutrisystem ended on November 13, 2011, some Nutrisystem customers, including Plaintiffs, received rescheduling calls from Defendants on their cell phones.

Plaintiffs allege, in their currently operative Second Amended Complaint ("SAC"), that, on or about August 16, 2012, Lemieux received a call on his cell phone from Schwan's, through Customer Elation, using "an artificial or prerecorded voice" in violation of § 227(b)(1)(A). (ECF No. 39 ¶¶ 17, 33, 38.)

The prerecorded call stated:

Hello, this is Bill from Schwan's Home Service with an automated message. Press 0 at any time to speak with a Customer Service Representative. I'm calling to inform you that your Schwan's representative will not be able to stop on [Month][Day] [and] instead will be stopping on [Month][Day]. We apologize for any inconvenience. If you have any questions or if you need to place an order, please call us at 888-SCHWANS or visit with us online at Thanks for your time.

Plaintiffs allege Lemieux listened to the automated message and then called the number provided therein to inquire about the automated call. (ECF No. ¶ 21.) Plaintiffs allege that, upon calling the number provided, Lemieux was connected with a sales representative, who acknowledged that Lemieux had no pending orders but who then "informed Plaintiff that the purpose of the automated telephone call was to advise Plaintiff that Defendants' outside sales representative would be in his neighborhood that day and that if he desired to place orders for any products, to contact the outside sales representative." (Id. ¶ 22.)

Plaintiffs allege Knutson also received a call on his cell phone from Schwan's, through Customer Elation, using "an artificial or prerecorded voice" in violation of 47 U.S.C. § 227(b)(1)(A). (Id. 39 ¶¶ 10, 33, 38.) Notwithstanding this allegation, however, Knutson testified at his deposition that he did not receive a call using "an artificial or prerecorded voice" but that he instead spoke with a live person. Knutson testified: "They said that, Schwan's delivery truck is going to be by to drop of your package at such-and-such a date." Still, Defendants' own business records indicate Knutson did in fact receive a prerecorded call on the date alleged.

Plaintiffs allege that neither Knutson nor Lemieux expressly consented to receive such calls on their cell phones. (Id. ¶ 13, 20.) Defendants admit that they have no documentation that either of the Plaintiffs expressly consented to receive such calls.

In sum, both of the Plaintiffs received an autodialed call, Lemieux received a prerecorded call, and there is a disputed question of fact as to whether Knutson received a prerecorded or live call.[1] Neither of the Plaintiffs had a relationship with Schwan's outside of being on delivery routes pursuant to the prior arrangement between Nutrisystem and Schwan's. Defendants confirm that calls are made to every customer on affected routes, whether or not they are current Schwan's customers and whether or not they have pending orders, unless the customer is removed from the route.

Defendants ceased calling Plaintiffs or any other Nutrisystem customer as of November 2012.

Plaintiffs have moved for summary judgment on their individual claims for violations of the TCPA. (ECF No. 84.)

The putative class is defined in Plaintiffs' SAC as:

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.

(ECF No. 39 at 5.)

Plaintiffs now seek to certify a class defined as:

All subscribers to wireless telephone numbers who are past or present customers of Nutrisystem, Inc., whose numbers were dialed by Defendants, where such calls were placed through the use of an automated dialer system and/or artificial or prerecorded voice between April 18, 2008 and August 31, 2012.

(ECF No. 65 at 5.) Plaintiffs thus seek to certify a more limited class than described in the SAC. The underlying claim, however, remains the same.


I. Legal Standard

Federal Rule of Civil Procedure 23 governs class certification. A plaintiff seeking class certification must affirmatively show the class meets the requirements of Rule 23. Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541, 2551 (2011); Doninger v. Pacific Northwest Bell, Inc. , 564 F.2d 1304, 1309 (9th Cir. 1977). More specifically, the plaintiff must satisfy all four requirements of Rule 23(a)-numerosity, commonality, typicality, and adequacy-and at least one of the requirements of Rule 23(b). Ellis v. Costco Wholesale Corp. , 657 F.3d 970, 979-80 (9th Cir. 2011); Zinser v. Accufix Research Inst., Inc. , 253 F.3d 1180, 1186 (9th Cir. 2011).

Although nothing in Rule 23 expressly requires a class to be ascertainable, federal courts have required a class to be currently and readily ascertainable based on objective criteria-especially with respect to a Rule 23(b)(3) action. See Marcus v. BMW N. Am., LLC , 687 F.3d 583, 591-92 (3rd Cir. 2012) (analyzing ascertainability as a preliminary matter before moving on to numerosity); Moreno v. Autozone, Inc. , 251 F.R.D. 417, 421 (N.D. Cal. 2008) (analyzing ascertainability in connection with numerosity), vacated on other grounds, 2009 WL 3320489 (N.D. Cal. Oct. 9, 2009); Schwarts v. Upper Deck Co. , 183 F.R.D. 672, 679-80 (S.D. Cal. 1999) (analyzing ascertainability in connection with superiority).

In determining whether certification is appropriate, a court is required to perform a "rigorous analysis, " which may require it "to probe behind the pleadings before coming to rest on the certification question." Dukes , 131 S.Ct. at 2551.

[T]he merits of the class members' substantive claims are often highly relevant when determining whether to certify a class. More importantly, it is not correct to say a district court may consider the merits to the extent that they overlap with class certification issues; rather, a district ...

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