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Whitaker v. Law

United States District Court, S.D. California

October 27, 2014

ASHLEE WHITAKER, on behalf of herself and all others similarly situated, Plaintiff,


M. JAMES LORENZ, District Judge.

This putative class action is brought by Plaintiff Ashlee Whitaker against Defendant Bennett Law, PLLC, asserting violations of the Telephone Consumer Protection Act, U.S.C. § 227. Plaintiff now moves for class certification under Federal Rule of Civil Procedure 23, as well as for default judgment. Defendant has failed to respond in this matter and default has been issued by the clerk. Clerk's Entry of Default, ECF No. 5.

The Court now decides the matter of class certification on the papers submitted and without oral argument under Civil Local Rule 7.1(d)(1). For the following reasons, the Court GRANTS Plaintiff's motion for class certification.


According to the Complaint, beginning no later than September of 2012 and continuing through approximately February of 2013, Ashlee Whitaker ("Whitaker") began receiving automated debt collection calls on her cellular telephone from Bennett Law, PLLC ("Bennett Law"). Compl. ¶¶ 10-11, 13, ECF No. 1. During this time, Bennett Law conducted business in the State of California and in the County of San Diego, primarily as a debt collection company on behalf of third parties. Id. ¶ 12; Mot. Class Cert. 4, ECF No. 11-1. Bennett Law's automated debt collection calls to Whitaker were not intended for her, but she received multiples of such calls nonetheless. Compl. ¶ 13. Whitaker did not provide Bennett Law, or any other entity, with her cellular telephone number, and did not provide prior express consent to call her cellular telephone number via an autodialer and/or prerecorded message. Id. ¶ 15. In an attempt to avoid these calls, in or about June 2013, Whitaker changed her cellular telephone number. Id. ¶ 14.

Under the terms of the Telephone Consumer Protection Act ("TCPA"), Bennett Law utilized an "automatic telephone dialing system, " ("ATDS") which uses an "artificial or prerecorded voice" to call and leave messages to telephone numbers stored within the ATDS. Compl. ¶ 17. The telephone number contacted by Bennett Law's ATDS was assigned to a cellular telephone service for which Whitaker was charged for incoming calls. Id. ¶ 19. Whitaker believes that Bennett Law may have obtained her cellular telephone number from a third party, or via caller identification technology, but did not receive that number from her. Id. ¶ 16.

On December 23, 2013, Whitaker filed her complaint against Bennett Law, requesting class certification and damages pursuant to Bennett Law's alleged class-wide violations of the TCPA. See generally Compl. Bennett Law failed to respond by the March 12, 2014 deadline; and on April 25, 2014, more than a month after the deadline, Whitaker sent a letter to Bennett Law, offering an extension to respond without the risk of default until May 12, 2014. Campion Decl. ¶ 2, ECF No. 9-2. Bennett Law still did not respond, and default was entered on May 16, 2014. Id . ¶ 3.

On June 18, 2014, Whitaker filed a motion for default judgment. Mot. Def. J., ECF No. 9-1. On July 3, 2014, Whitaker filed a motion for class certification. Mot. Class. Cert. ECF No. 11. Both motions were set for hearing on August 18, 2014. Order re: Hearing Date, ECF No. 12.


The class action is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). In order to justify a departure from that rule, "a class representative must be part of the class and possess the same interest and suffer the same injury' as the class members." Id. (citing E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). In this regard, Rule 23 contains two sets of class certification requirements set forth in Rule 23(a) and (b). United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union v. ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010). "A court may certify a class if a plaintiff demonstrates that all of the prerequisites of Rule 23(a) have been met, and that at least one of the requirements of Rule 23(b) have been met." Otsuka v. Polo Ralph Lauren Corp., 251 F.R.D. 439, 443 (N.D. Cal. 2008). "The burden is on the plaintiff to establish that the... requirements have been met." Id.

Rule 23(a) provides four prerequisites which all must be satisfied for class certification:

(1) the class must be so numerous that joinder of all members is impracticable; (2) questions of law or fact exist that are 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.

Otsuka, 251 F.R.D. at 443 (citing Fed.R.Civ.P. 23(a)). The plaintiff must also show that one of the following requirements under Rule 23(b) for maintaining the suit have been satisfied:

(1) that there is a risk of substantial prejudice from separate actions; (2) that declaratory or injunctive relief benefitting the class as a whole would be appropriate; or (3) that common questions of law or fact predominate and the class ...

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