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McMillion v. Rash Curtis & Associates

United States District Court, N.D. California

September 6, 2017

Sandra McMillion, et al., Plaintiffs,
v.
Rash Curtis & Associates, Defendant.

         ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION [1] RE: DKT. 47

          YVONNE GONZALEZ ROGERS, UNITED STATES DISTRICT COURT JUDGE.

         Plaintiffs Sandra McMillion, Jessica Adekoya, and Ignacio Perez bring this putative class action against defendant Rash Curtis & Associates alleging that defendants called plaintiffs without consent, in violation of several laws. Specifically, plaintiffs claim that defendant violated the following: (i) Telephone Consumer Protection Act, 47 U.S.C. sections 227, et seq. (the “TCPA”); (ii) Fair Debt Collection Practices Act, 15 U.S.C. sections 1692, et seq. (the “FDCPA”); and (iii) the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code sections 1788, et seq., (the “Rosenthal Act”).

         Plaintiffs[2] now seek to certify the following four classes as both injunctive relief classes pursuant to Rule 23(b)(2) and damages classes pursuant to Rule 23(b)(3):

         With Adekoya and Perez as Class Representatives:

(a) Skip-Trace Class 1: All persons who received a call on their cellular telephones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis' DAKCS VIC dialer and/or Global Connect dialer whose cellular telephone was obtained by Rash Curtis through skip tracing.
(b) Skip-Trace Class 2: All persons who received a prerecorded message or robocall on their cellular telephones [or] landline phones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis whose telephone number was obtained by Rash Curtis through skip tracing.
With Perez Only as Class Representative:
(a) Non-Debtor Class 1: All persons who received a call on their cellular telephones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis' DAKCS VIC dialer and/or Global Connect dialer whose telephone number was obtained by Rash Curtis through skip tracing and for whom Rash Curtis never had a debt-collection account in their name.
(b) Non-Debtor Class 2: All persons who received a prerecorded message or robocall on their cellular telephones [or] landline phones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis whose telephone number was obtained by Rash Curtis through skip tracing and for whom Rash Curtis has never had a debt-collection account in their name.[3]

         Excluded from the classes are “persons who provided their cellular telephone in an application for credit to a creditor that has opened an account with [d]efendant in such debtor's name prior to [d]efendant first placing a call using an automatic telephone dialing system and/or prerecorded voice, ” in addition to certain entities related to defendant, defendant's agents and employees, and any judge or magistrate judge to whom this action is assigned, their staff, and immediate families. (Dkt. No. 46-5 at 10.)

         Having carefully considered the pleadings, the papers and exhibits submitted, and for the reasons set forth more fully below, the Court Grants in Part plaintiffs' motion, as set forth herein.[4]

         I. Background

         Plaintiffs bring the instant action against defendant in connection with defendant's allegedly unlawful debt collection practices. Defendant is a “large, nationwide debt collection agency” and plaintiffs allege that defendant “uses repeated robocalls, pre-recorded voice messages, and auto-dialed calls to threaten and harass consumers in an attempt to collect” debts, in violation of the TCPA, the FDCPA, and the Rosenthal Act. (Dkt. No. 1 (“Compl.”) at ¶ 1.)

         Plaintiffs allege that defendant repeatedly called them on their cellular telephones using an autodialer and/or an artificial or prerecorded voice. (Id. at ¶¶ 2, 4, 6.) Plaintiffs further allege that they did not provide defendant with prior express written consent, and they specifically asked defendant to stop calling. (Id.) Defendant allegedly called McMillion thirty-three times, Adekoya forty-five times, and Perez four times. (Id. at ¶¶ 3, 5, 7.) The complaint further alleges that several consumer complaints have been filed against defendant regarding similarly unsolicited robocalls and autodialed calls. (Id. at ¶ 38.)

         To make these calls, plaintiffs offer evidence indicating that defendant employs two autodialer systems, namely, the DAKCS/VIC Software System and the Global Connect system. (See Deposition of Steven Kizer (“Kizer Dep.”), Dkt. No. 46-6, at 55:6-56:12.) The VIC dialer can allegedly dial about eighty phone numbers per minute, and the Global Connect dialer can dial approximately 60, 000 phone numbers in a twelve-hour period. (Id. at 99:12-100:12.) Plaintiffs allege thus regarding defendant's business practices related to these calls:

         Defendant generally receives debt-accounts from creditors. (Id. at 45:19-47:17.) While some of these accounts include debtors' phone numbers-such individuals are excluded from the class definitions as set forth above-defendant receives many accounts without any telephone numbers at all. (Id. at 47:23-48:1.) For these accounts, defendant uses a process referred to as “skip tracing” to obtain phone numbers associated with the names on the accounts. (Id. at 83:3- 84:20; 91:9-92:6.) “Skip tracing” is a “method or process for locating individuals for the purpose of contacting them, ” using “data analysis of personal information obtained from various and multiple public and private databases.” (Declaration of Randall A. Snyder (“Snyder Decl.”), Dkt. No. 46-7, at ¶¶ 58-60.) According to plaintiffs, accounts where phone numbers were obtained through skip tracing are marked with a unique status code and are, therefore, readily identifiable. (Kizer Dep. Tr. 86:7-9; 90:13-90:24.) At times, this process would produce a phone number not connected to any individual for whom defendant had a debt account from a creditor. Yet, defendant would often call these numbers despite not having any accounts related to those individuals.

         On such bases, plaintiffs seek to certify four classes as set forth above, challenging defendant's use of autodialers, robocallers, and pre-recorded voice messages to contact individuals in an attempt to collect on their debt.

         II. Legal Framework

         Under Federal Rule of Civil Procedure 23(a), the Court may certify a class only where “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact 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.” Fed.R.Civ.P. 23(a). Courts refer to these four requirements as “numerosity, commonality, typicality[, ] and adequacy of representation.” Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012).

         Once the threshold requirements of Rule 23(a) are met, plaintiffs must then show “through evidentiary proof” that a class is appropriate for certification under one of the provisions in Rule 23(b). Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013). Here, plaintiffs seek certification under Rule 23(b)(2) and Rule 23(b)(3).

         Rule 23(b)(2) requires plaintiffs to establish that the “party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). “Class certification under Rule 23(b)(2) is appropriate only where the primary relief is declaratory or injunctive.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011) (citation omitted).

         Rule 23(b)(3) requires plaintiffs to establish “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). The predominance inquiry focuses on “whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)).

         “[A] court's class-certification analysis must be ‘rigorous' and may ‘entail some overlap with the merits of the plaintiff's underlying claim.'” Amgen, Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 465 (2013) (quoting Wal-Mart, 564 U.S. at 351); see also Mazza, 666 F.3d at 588. The Court considers the merits to the extent they overlap with the Rule 23 requirements. Ellis, 657 F.3d at 983. The Court must resolve factual disputes as “necessary to determine whether there was a common pattern and practice that could affect the class as a whole.” Id. (emphasis in original). “When resolving such factual disputes in the context of a motion for class certification, district courts must consider ‘the persuasiveness of the evidence presented.'” Ellis, 657 F.3d at 982. “A party seeking class certification must affirmatively demonstrate [its] compliance with the Rule.” Wal-Mart, 564 U.S. at 350. Ultimately, the Court exercises its discretion to determine whether a class should be certified. Califano v. Yamasaki, 442 U.S. 682, 703 (1979).

         III. ...


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