United States District Court, D. Colorado
SETH WARNICK, on behalf of himself and all others similarly situated, Plaintiff,
DISH NETWORK LLC, Defendant
Seth Warnick, on behalf of himself and all others similarly situated, Plaintiff: Megan Lynn Lindsey, LEAD ATTORNEY, Steven Lezell Woodrow, Edelson, P.C.-Denver, Denver, CO; Brian James Trenz, David Schafer, David Patrick Schafer, PLLC, San Antonio, TX; Keith James Keogh, Timothy James Sostrin, Keogh Law, Ltd., Chicago, IL.
For Dish Network, LLC, Defendant: David Mehretu, Jeremiah Joseph Burke, Richard Ralph Patch, Susan K. Jamison, Zuzana Svihra Ikels, Coblentz Patch Duffy & Bass, LLP, San Francisco, CA; Rachel Ann Morris, Todd Estes Mackintosh, Wood, Ris & Hames, P.C., Denver, CO.
Wiley Y. Daniel, Senior United States District Judge.
THIS MATTER came before the Court on a hearing on October 30, 2014. The hearing addressed the Order to Show Cause issued on August 28, 2014, as well as Plaintiff's Motion to Enforce Judge Daniel's Order to Produce Documents (" Motion to Enforce") filed October 3, 2014. For the reasons discussed below, the Order to Show Cause is made absolute and the denial without prejudice by Order of June 27, 2014, of Plaintiff's Motion for Class Certification filed August 2013, is converted to a denial with prejudice. Plaintiff's Motion for Class Certification is thus now denied with prejudice. Plaintiff's Motion to Enforce is denied.
As noted in the Order to Show Cause, the class ultimately proposed by Plaintiff Seth Warnick [" Plaintiff" or " Warnick" ] in the briefing related to the Motion for Class Certification was found in my Order of June 27, 2014, not to be administratively feasible, and thus not ascertainable. Moreover, while Warnick's Motion to Enforce seeks discovery related to approximately 27, 000 individuals in the TCPA Tracker, Warnick is not a part of that Tracker as he did not call DISH to complain about the calls made to him by DISH. Accordingly, I held in my Order denying class certification that " a revision limiting the class to persons identified in the TCPA Tracker would not be appropriate as Plaintiff would lack standing to sue as a class representative." (Order of June 27, 2014, ECF No. 238, at 17.) Plaintiff continues, however, to attempt to pursue a class based primarily on the 27, 000 individuals identified in the TCPA Tracker.
I further noted in the Order to Show Cause that Plaintiff has not pointed to any documents that would allow him to ascertain a class through an appropriate methodology other than (1) the TCPA Tracker that he is not a part of and for which he lacks standing to represent a class and/or (2) the 600 million records that encompass all of DISH's records and for which I found discovery would be overbroad and unduly burdensome. Moreover, the discovery deadline expired on January 3, 2014 (ECF No. 142), and Plaintiff has not sought leave to obtain discovery outside the discovery period. Accordingly, I ordered Plaintiff to show cause at the hearing why I should not enter an immediate order converting the denial without prejudice of the Motion for Class Certification to a denial with prejudice, and then set the case for trial on Plaintiff Warnick's individual claims.
At the hearing, Plaintiff proposed that he can cure his standing problem by redefining his class as noncustomers of DISH who complained to DISH, either through calling DISH (the 27, 000 individuals in the TCPA Tracker) or by filing a lawsuit about robocalls made to them by DISH (consisting of Warnick and seven other individuals who filed lawsuits against DISH). While Plaintiff did not call DISH and is thus not part of the TCPA Tracker, he argues he has standing to represent the putative class since he complained by filing a lawsuit, and is thus similarly situated to the other seven individuals who sued DISH. With the addition of those seven individuals, Warnick asserts he would then " part of the class" as required for a class representative. See Wal-Mart Stores, Inc. v. Dukes, U.S., 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011).
I find, however, through the " rigorous analysis" required as to whether Plaintiff can satisfy Rule 23's requirements, Dukes, 131 S.Ct. at 2551, that Plaintiff's class definition is still inadequate as it is not ascertainable. Additionally, I find that Plaintiff cannot show that a class action is the superior method for resolving this litigation.
I first address that portion of the putative class that Plaintiff asserts he is a part of--the seven individuals who complained about DISH's robocalls through filing a lawsuit. Six of those individual's cases have, however, been dismissed. See Stephanie Fini v. DISH, Case No. 12-690 (M.D. Fla.) (settled and dismissed with prejudice); Jaquita Lyons v. DISH, Case No. 13-cv-00192 (D. Colo.) (same); Wade Ruch v. DISH, Case No. 13-466 (D. Or.) (same); Iniguez/Neuls v. DISH, Case No. 13-1181 (D. Colo.) (Case No. 12-2354 from E.D. Cal. was transferred to this Court after one named plaintiff was dismissed with prejudice; the remaining three plaintiffs in the transferred action subsequently settled with DISH and the case was dismissed with prejudice); Moore v. DISH, Case No. 13-00036, (N.D.W.V.) (summary judgment entered October 15, 2014). I find that the plaintiffs in those concluded TCPA cases could not and should not be part of any class Warnick could hope to certify. See Aspacher v. Kretz, No. 94-6741, 1998 WL 901683 (N.D. Ill.Dec. 19, 1998) (denying motion for leave to file amended complaint bringing previously dismissed plaintiffs back into case as dismissals with prejudice are adjudications on the merits).
As to the only other remaining individual who sued DISH, Mr. Maraan, his case was set for trial on November 18, 2014. ( Benjamin Maraan v. DISH, Case No. 13-436, (S.D. Ohio), ECF No. 16, Scheduling Order.) I agree with DISH that Warnick, who seeks to certify a class under Fed.R.Civ.P. 23(b)(3), has not and cannot show that his representation of Mr. Maraan as a putative class member would meet the superiority requirement of that rule. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (under Rule 23(b)(3), a plaintiff must show that class resolution is " 'superior to other available methods for the fair and efficient adjudication of the controversy'"). In making a determination as to superiority, I " ''consider the interest of individual members of the class in controlling their own litigations and carrying them on as they see fit.'" Id. at 616 (quoting Advisory Comm. Notes, 28 U.S.C.App., p. 698). Mr. Maraan clearly demonstrated his interest and desire to bring and control his own case and, presumably, it has already gone to trial.
Even if Mr. Maraan's case has not yet gone to trial, combining his case with Warnick's case would merely cause unnecessary delay in resolution of Mr. Maraan's claims that are at a much more advanced stage than Warnick's. Further, Warnick has not demonstrated that he is in a better position to take on those claims. Thus, I find that a class action with Mr. Maraan in the class as the sole individual, other than Plaintiff, who complained about DISH's robocalls through filing suit would not be the " superior" method for the fair and efficient adjudication of the controversy. See Mitchell v. Texas Gulf Sulphur Co., 446 F.2d 90, 107 (10th Cir. 1971) (denying certification motion where other litigation was far advanced). Additionally, Mr. Maraan seeks treble damages for DISH's allegedly " willful" violation of the TCPA, a claim Warnick cannot assert here as summary judgment was granted as to this claim. Plaintiff thus cannot show that his claims are typical of the claims of that class member. Fed.R.Civ.P. 23(a)(3); see also Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 159, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (where proof of the named plaintiff's claim will not resolve the class claims, typicality is lacking).
Accordingly, the seven individuals who filed lawsuits to complain about DISH's robocalls are not properly part of a class that Warnick can represent. This leaves only the individuals in the TCPA Tracker for which I have already ruled ...