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Davis v. AT&T Corp.

United States District Court, S.D. California

March 28, 2017

ERIC DAVIS, on behalf of himself and all others similarly situated,, Plaintiff,
v.
AT&T CORP., a corporation,, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

          HON. DANA M. SABRAW, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff's motion for class certification. Defendant AT&T Services, Inc. filed an opposition to the motion, and Plaintiff filed a reply. The motion came on for hearing on February 24, 2017. Kira Rubel, Scott Owens and Alanna Pearl appeared on behalf of Plaintiff, and Hans Germann and John Nadolenco appeared on behalf of Defendant. Having carefully considered the pleadings and arguments of counsel, the Court denies the motion.

         I. BACKGROUND

         This case arises under the Telephone Consumer Protection Act (“TCPA”). Plaintiff Eric Davis alleges that beginning in June 2013 and continuing through approximately December 2015, Defendant called his cellular telephone inquiring about an AT&T U-Verse account. Plaintiff has never had an account with AT&T, and during at least two of those phone calls he told Defendant's agent they had the wrong number. Nevertheless, the calls continued.

         On October 16, 2015, Plaintiff filed the present case alleging one claim for negligent violation of the TCPA and another claim alleging willful violation of the TCPA. In the original Complaint, and the three Amended Complaints that followed, Plaintiff purported to represent the following class of individuals:

All persons within the United States who received any telephone call from Defendant or its agents to his or her cellular telephone through the use of any ATDS and/or with an artificial or pre-recorded voice, without their prior express consent, within the four years prior to the filing of the Complaint in this action whose phone number was obtained by skip tracing or through other third parties.

         On September 16, 2016, Plaintiff filed a motion for leave to amend the scheduling order so he could file a Fourth Amended Complaint that set forth a different proposed class. That class was defined as:

All persons within the United States who had or have a number assigned to a cellular telephone service and received at least two telephone calls from Defendant or its agents through the use of any ATDS and/or with an artificial or pre-recorded voice, without their prior express consent, within the four years prior to the filing of the Complaint in this action who were not customers of Defendant at the time of the calls, where Defendant's records indicate that prior to the second and/or any subsequent call, the call recipient indicated that Defendant had reached a “wrong number” or similar notation in Defendant's customer account records.

         The Court denied that motion, finding Plaintiff had failed to show the good cause required by Federal Rule of the Civil Procedure 16(b). In particular, Plaintiff failed to explain the delay in filing his motion given his knowledge of the facts and his filing of several amended complaints. \

         Plaintiff now moves for class certification, but not for the class proposed in his Third Amended Complaint. Rather, Plaintiff moves to certify the class proposed in his Fourth Amended Complaint, which was not accepted for filing.

         II. DISCUSSION

         Plaintiff asserts the class set out in his proposed Fourth Amended Complaint meets the requirements of Federal Rules of Civil Procedure 23(a), (b)(2) and (b)(3). Defendant disputes that any of the requirements for class certification are met. It also argues the class Plaintiff seeks to represent is different from the one set out in the operative Complaint, and thus not subject to certification.

         A. The Proposed Class

         District courts in the Ninth Circuit have taken different approaches to whether a court may certify a class other than the one described in the complaint. In Berlowitz v. Nob Hill Masonic Mgmt., Inc., No. C-96-01241 MHP, 1996 U.S. Dist. LEXIS 22599 (N.D. Cal. Dec. 6, 1996), the court declined to do so, stating it was “bound by the class definition provided in the Complaint[, ]” and that it would “not consider certification of the class beyond the definition provided in the complaint unless plaintiffs choose to amend it.” Id. at *6. See also Costelo v. Chertoff, 258 F.R.D. 600, 604-05 (C.D. Cal. 2009) (citing Berlowitz) (same). Other courts have taken a more nuanced approach and agreed to consider certification of a class other than that described in the complaint if “the proposed modifications [to the class definition] are minor, require no additional discovery, and cause no prejudice to defendants.” In re: TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 590-91 (N.D. Cal. 2010). See also Van Patten v. Vertical Fitness, No. 12cv1614-LAB (MDD), 2013 U.S. Dist. LEXIS 189845, at * 7-11 (S.D. Cal. Nov. 8, 2013) (agreeing to consider modified class definition because there was no prejudice to defendant). While not described as “minor, ” courts have considered certification of an amended class if it is narrower than the class alleged in the complaint. Abdeljalil v. General Electric Capital Corp., 306 F.R.D. 303, 306 (S.D. Cal. 2015); Knutson v. Schwan's Home Services, Inc., No. 3:12-cv-0964-GPC-DHB, 2013 U.S. Dist. LEXIS 127032, at *10-13 (S.D. Cal. Sep. 5, 2013). See also Wolf v. Hewlett Packard Co., No. CV 15-01221 BRO (GJSx), 2016 U.S. Dist. LEXIS 18122, at *21-22 (C.D. Cal. Sep. 1, 2016) (considering revised class definition because it was “narrower than the definition in the operative complaint, ” and there was “no lack of diligence on the part of Plaintiff[.]”)

         Here, Plaintiff argues the class he seeks to certify falls within the “narrowing” exception and is therefore appropriate for consideration. Defendant disagrees, and asserts the class at issue here is an entirely different ...


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