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Smith v. Microsoft Corporation

United States District Court, Ninth Circuit

December 10, 2013

NEIL SMITH, individually and on behalf of a class of similarly situated individuals, Plaintiff,
v.
MICROSOFT CORPORATION, a Washington corporation, Defendant.

ORDER DENYING DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION (ECF No. 72 (sealed)).

JANIS L. SAMMARTINO, District Judge.

Presently before the Court is Defendant Microsoft Corporation's ("Defendant") Motion to Strike: (1) Declaration of Randall A. Snyder, and (2) Affidavit of John T. Taylor Filed in Support of Plaintiff's Reply in Support of his Motion for Class Certification. (ECF No. 72 (sealed).) Also before the Court are Plaintiff's Response in Opposition to (ECF No. 74) and Microsoft's Reply in Support of (ECF No. 75) the Motion. The hearing for the Motion scheduled for December 19, 2013, is HEREBY VACATED, and the matter taken under submission without oral argument pursuant to Civil Local Rule 7.1.d.1.[1] Having considered the parties' arguments and the law, the Court DENIES Microsoft's Motion.

BACKGROUND

Smith, a resident of Illinois, brings this putative class action against Microsoft, a Washington corporation, for sending unauthorized text messages promoting Microsoft's Xbox to cellular telephones in violation of the Telephone Consumer Protection Act of 1991 ("TCPA" or "Act"), 47 U.S.C. § 227. ( See generally Compl., ECF No. 1.)

In September 2008, Microsoft's advertising agencies used text-message advertising company Come&Stay, Inc. ("C&S") to send two versions of a text message advertising Microsoft's new Xbox website ("the Xbox Texts"). (Mot. for Class Cert. 13, ECF No. 34-1.) On September 12, 2008, SMS aggregator m-Qube sent 92, 927 of these messages to 91, 708 unique phone numbers ("the m-Qube List"). ( Id. ) Smith received one such message. (Compl. ¶ 16, ECF No. 1.) Smith did not request or consent to receive the message. (Mot. for Class Cert. 14, ECF No. 34-1.) Smith now brings this action on behalf of himself and a class of others similarly situated. ( Id. at 15.)

On October 20, 2011, Microsoft moved to dismiss for lack of subject matter jurisdiction. (ECF No. 6.) The Court vacated the hearing on the motion scheduled for January 5, 2012. (ECF No. 12.) In a July 20, 2012 Order, the Court denied the motion, finding that Smith had standing to bring this action. (ECF No. 15.) On August 3, 2012, Microsoft answered the Complaint. (ECF No. 16.)

On December 14, 2012, Magistrate Judge Skomal granted the parties' joint motion for entry of a stipulated protective order. (ECF No. 23.) On April 24, 2013, Smith filed his Motion for Class Certification. (ECF No. 38.) The Motion for Class Certification requested that the Court certify as a class "the 91, 708 consumers who received a text message advertising Microsoft's Xbox from short code 88202 on September 12 or 13, 2008"-in other words, the m-Qube List. (Mot. for Class Cert. 17, ECF No. 34-1.)

In its Opposition to Plaintiff's Motion for Class Certification, Microsoft argued that Plaintiff's proposed class failed to satisfy the commonality, predominance, superiority, and ascertainability requirements because "[a]t least 24% of the phone numbers on m-Qube's list could not have received a text message in 2008, " as they were either landlines or cell phones without texting capability. (Def.'s Resp. in Opp'n 18-19, ECF No. 48 (sealed)).

Thereafter,
Plaintiff and his expert witness engaged a third party vendor to compare, or scrub, ' the C&S list of numbers to which the text messages were sent against a list of wireless phone numbers maintained by Neustar, Inc. and other authorities which own and operate an accurate and highly reliable nationwide real-time wireless number database.

(Reply 8, ECF No. 63 (sealed).) This "scrubbed" list contains 55, 123 numbers, and Plaintiff now claims to "narrow" the proposed class to the numbers appearing on the "scrubbed" list. ( Id. ) On November 8, 2013, Microsoft filed the instant Motion to Strike this "new" evidence appearing in Plaintiff's Reply in Support of its Motion.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. Proc. 12(f). The function of a motion to strike is to avoid the unnecessary expenditures that arise throughout litigation by dispensing of any spurious issues prior to trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, ...


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