Opinion
CV-22-00716-PHX-ROS
11-02-2022
Steve Webb, Plaintiff, v. Circle K Stores Incorporated, Defendant.
ORDER
Roslyn O. Silver Senior United States District Judge
Plaintiff Steve Webb filed this putative class action alleging Defendant Circle K sent him unsolicited text messages and, in doing so, violated the Telephone Consumer Protection Act (“TCPA”). Circle K responded to the complaint by moving to strike some of the “class allegations on the basis that the class as pled cannot be pursued.” (Doc. 15 at 2). Plaintiff opposes the motion, arguing the class definition at issue is appropriate despite Circle K's arguments. The parties' briefing is based on an incorrect assumption that the class definition contained in a complaint dictates the precise contours of the class that may be certified. A complaint's class definition does not have that effect and the motion to strike will be denied.
BACKGROUND
Plaintiff alleges Circle K started sending unsolicited text messages to his cellular phone in February 2021. (Doc. 1 at 3). In April 2021, Plaintiff sent a message to Circle K attempting to opt-out of additional messages. Approximately one year later, Plaintiff received additional text messages. In addition to being unsolicited, those text messages allegedly did not contain information required by the TCPA. In April 2022, Plaintiff filed this suit on behalf of himself and a “Do Not Call” class consisting of individuals who asked Circle K to be removed from the calling list but continued to receive text messages. (Doc. 1 at 10). Plaintiff also seeks to sue on behalf of himself and a “Seller Identification” class of individuals who received text messages that did not contain all the information required by the TCPA. (Doc. 1 at 6-7).
The complaint contains exact definitions of two classes Plaintiff seeks to represent. The “Do Not Call” class is defined in the complaint as:
All persons within the United States who, within the four years prior to the filing of this Complaint, were sent a text message from Defendant or anyone on Defendant's behalf, to said person's cellular telephone number after making a request to Defendant to not receive future text messages.(Doc. 1 at 6). And the “Seller Identification” class is defined as:
All persons within the United States who, within the four years prior to the filing of this Complaint through the date of class certification, (1) received two or more text messages within any 12-month period, (2) regarding Defendant's property, goods, and/or services, (3) to said person's residential telephone number, (4) that did not disclose the name of the individual caller, the name of the person or entity on whose behalf the call is being made, or a telephone number or address at which the person or entity may be contacted.(Doc. 1 at 6-7). Circle K does not dispute any aspect of the proposed definition for the “Seller Identification” class. However, Circle K argues the proposed definition for the “Do Not Call” class is so flawed that no class could ever be certified under that exact definition. Therefore, Circle K argues the Court should “strike” all the allegations connected to the “Do Not Call” class.
ANALYSIS
According to Circle K, the complaint's “Do Not Call” class allegations should be stricken “on the basis that the class as pled cannot be pursued.” (Doc. 15 at 2). In general, Circle K believes the exact definition set forth in the complaint would require individualized inquiries such that class treatment would be inappropriate. Plaintiff responds the proposed “Do Not Call” class definition in the complaint reflects a class that can and should be certified. Plaintiff also argues that, to the extent the complaint's “Do Not Call” class definition “suffers from some technical flaw,” the Court should grant “leave to amend the Complaint to correct any such technical deficiencies.” (Doc. 16 at 7 n.4).
Based on their briefs, “[b]oth parties appear to assume that the definition of the . . . class alleged in the complaint is ultimately binding on the Court. This is an inaccurate assumption.” Bueche v. Fid. Nat. Mgmt. Servs., LLC, 2014 WL 2468601, at *2 (E.D. Cal. June 2, 2014). Neither party cites authority establishing a complaint's exact proposed class definition is controlling such that if a class cannot be certified using that definition, the class claim is doomed to fail. There is some limited authority claiming as much. For example, one district court reasoned a court “is bound to class definitions provided in the complaint and, absent an amended complaint, will not consider certification beyond it.” Costelo v. Chertoff, 258 F.R.D. 600, 604-05 (C.D. Cal. 2009). Other courts have adopted a more forgiving rule that “plaintiffs cannot broaden the class definition” without seeking leave to file an amended complaint but they can “narrow the class definition without seeking leave to amend.” Hawkins v. Kroger Co., 337 F.R.D. 518, 526 (S.D. Cal. 2020). The Court has not located any case imposing limitations of this sort that cites Ninth Circuit or Supreme Court authority requiring such an approach.
“There is no rule that the definition of a certified class must exactly match the definition contained in a complaint.” Sandoval v. Cnty. of Sonoma, 2015 WL 1926269, at *2 (N.D. Cal. Apr. 27, 2015). Provided a complaint gives adequate notice of the claim being asserted, the definition contained in the complaint does not dictate the exact class that can be certified, nor does it prevent modifications of the class definition after certification. See Bueche v. Fid. Nat. Mgmt. Servs., LLC, 2014 WL 2468601, at *3 (E.D. Cal. June 2, 2014) (rejecting motion premised on assumption that plaintiff is limited to class definition in complaint). The Ninth Circuit has recognized that “where appropriate, the district court may redefine the class.” Armstrong v. Davis, 275 F.3d 849, 872 n.28 (9th Cir. 2001). And that case contains no mention of a need to amend the complaint whenever the class definition is changed. The Second Circuit has been even clearer that “[a] court is not bound by the class definition proposed in the complaint.” Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993). See also Powers v. Hamilton Cnty. Pub. Def. Comm'n, 501 F.3d 592, 619 (6th Cir. 2007) (holding “district courts have broad discretion to modify class definitions”); In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004) (holding “[d]istrict courts are permitted to limit or modify class definitions”). Circle K does not address this basic rule nor does it explain why potential flaws with the class definition in the complaint necessarily prevents the case from proceeding as a putative class action. The alleged flaws Circle K identifies in the complaint's definition do not support Circle K lacking notice of the claim being raised. Rather, the alleged flaws are minor issues that, if they exist, can easily be remedied at the certification stage.
The “Do Not Call” class defined in the complaint covers all individuals who received additional text messages “after making a request” that they not receive such messages. That is sufficient to place Circle K on notice of the alleged violation at issue. Circle K argues the “Do Not Call” definition is fatally flawed because an individual might have made a request to not receive text messages, changed his mind, and then requested Circle K send him more text messages. That individual would technically fit under the class definition but, in Circle K's view, would have no claim. Circle K does not explain why this possibility that, at certification, a slightly more definite class definition will be needed establishes all class allegations should be stricken at the pleading stage. The proper stage for fine-tuning the class definition is certification, not pleading.
Circle K also argues the “Do Not Call” definition in the complaint does not account for the fact that businesses have up to 30 days to implement a request to stop receiving messages. Based on this, Circle K argues the current definition would again include individuals who have no claim such as individuals who received additional texts messages a few days after requesting to opt-out. Even assuming Circle K is correct regarding the 30-day period, this minor issue is another matter that is best addressed at the certification stage. At that point, the parties will have conducted discovery and a precise class definition can be crafted based on the record and applicable law. Circle K's motion to strike the class allegations will be denied and Circle K required to answer the complaint.
A scheduling order is already in place. (Doc. 21). The parties shall comply with the dates in that order. However, the current scheduling order contains inaccurate information regarding the Court's discovery dispute procedures. Should a discovery dispute arise, the parties must comply with the Court's procedures outlined on the website.In addition, the current deadline for dispositive motions is August 28, 2023. The parties may not file such motions prior to the interim conference set for August 10, 2023. (Doc. 26).
Available at https://www.azd.uscourts.gov/sites/default/files/judge-orders/R0S%20Discovery%20Dispute%20Instructions%200n%20Line.pdf
Accordingly, IT IS ORDERED the Motion to Strike (Doc. 15) is DENIED.