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Chinitz v. NRT West, Inc.

United States District Court, N.D. California

August 30, 2019

RONALD CHINITZ, Plaintiff,
v.
NRT WEST, INC., d/b/a Coldwell Banker Residential Brokerage Company, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION RE: DKT. NO. 60

          NATHANAEL M. COUSINS UNITED STATES MAGISTRATE JUDGE.

         In this class action, plaintiff Ronald Chinitz accuses defendant NRT West (“NRT”), Inc., of making unlawful robocalls. Chinitz now seeks to certify three nationwide classes. See Dkt. No. 60. For two of those classes, Chinitz failed to present any evidence to establish numerosity. And for all of his proposed classes, Chinitz failed to present sufficient evidence to establish a common question. Accordingly, the Court DENIES Chinitz's motion for class certification.

         I. Background

         A. Factual Background

         NRT, more commonly known as Coldwell Banker Residential Brokerage, is a residential brokerage company. See Dkt. No. 60-6 (“Robinson Depo.”) at 14:14-18. NRT operates regional offices, where it contracts with local realtors or “sales associates.” Id.; see also Dkt. No. 60-12. In NRT's Palo Alto office, NRT has hired over 100 current or former sales associates since 2014. See Dkt. No. 61-5 at 4-11. Similar Coldwell Banker entities operate throughout the United States. See Robinson Depo. at 23:23 - 25:18.

         In 2003 and 2018, Chinitz placed his landline and VOIP numbers on the national do-not-call registry, respectively. See Dkt. No. 60-2, 60-3. In 2017, after Chinitz placed his home in Santa Cruz, California on an online real estate listing portal for sale, he received unwanted calls on behalf of NRT sales associates. See Dkt. No. 61-14 (“Chinitz Depo.”) at 59:6-14; see also Dkt. No. 60-12. One of those associates was Matt Christensen. See Id. at 145:10-20. After receiving those calls, Chinitz asked the caller to not call him back, but he continued to receive unwanted calls. See Dkt. No. 60-4 at 3. On more than one occasion, Chinitz received calls using a prerecorded message. See id.

         According to Christensen, it was common practice in the industry to use third-party services or online listings to gather lists of prospective real estate clients and to use those lists to call prospective clients. See Dkt. No. 60-5 (“Christensen Depo.”) at 62:14-64:13. Although NRT provided various onboarding documents regarding cold calling practices, Christensen did not receive any specific training regarding the requirements of the National Do-Not-Call Registry. Id. at 71:12-72:20. Likewise, Christensen had access to NRT's internal do-not-contact lists, but did not use those lists to screen his calls. Id. at 74:1-18. Christensen also used third-party services to call homeowners on his behalf. Id. at 84:10-85:1.

         B. Procedural History

         On October 4, 2018, Chinitz initiated this putative class action alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. See Dkt. No. 1. He amended his complaint on December 14, 2018, alleging putative class claims for (1) calling individuals on the national do-not-call registry, 47 C.F.R. § 64.1200(c)(2); (2) calling individuals on its internal do-not-call registry, 47 C.F.R. § 64.1200(d); (3) using a non-exempt artificial or prerecorded message, 47 U.S.C. § 227(b)(1)(B); and (4) violating the UCL. See Dkt. No. 16 (“FAC”) ¶¶ 55-93. On February 20, 2019, the Court dismissed Chinitz's UCL claim. See Dkt. No. 42. Chinitz now moves to certify three classes:

National Do-Not-Call Registry Class (“NDNC Class”): All persons in the United States who: (a) received more than one call made by one of NRT's real estate agents on NRT's behalf or by another agent of NRT on NRT's behalf; (b) promoting NRT's goods or services; (c) in a 12-month period; (d) on their residential telephone line; (e) whose residential telephone number(s) appear on the DNC; (f) at any time since October 4, 2014.
National Internal Do-Not-Call Class (“IDNC Class”): All persons in the United States who: (a) received more than one call made by one of NRT's real estate agents on NRT's behalf or by another agent of NRT on NRT's behalf; (b) promoting NRT's goods or services; (c) in a 12-month period; (d) on their residential telephone line; (e) who made a request not to receive calls from or on behalf of NRT; (f) at any time since October 4, 2014.
National Prerecorded Message Residential Class (“Prerecorded Message Class”): All persons in the United States to whom: (a) one of NRT's real estate agents on NRT's behalf, or another agent of NRT on NRT's behalf, initiated one of more non-emergency telephone calls; (b) promoting NRT's goods or services; (c) to a recipient's residential telephone line; (d) through the use of an artificial or prerecorded voice; (e) at any time since October 4, 2014.

See FAC ¶ 43. Chinitz seeks both monetary relief and injunctive relief. See Id. at 15-16. All parties have consented to the jurisdiction of a magistrate judge. See Dkt. Nos. 8, 25.

         II. ...


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