Opinion
24-cv-00901-JST
07-29-2024
CHRISTOPHER PAYNE, Plaintiff, v. SIEVA NETWORKS, INC., Defendant.
ORDER GRANTING MOTION TO DENY CLASS CERTIFICATION RE: ECF NO. 19
JON S. TIGAR United States District Judge
Plaintiff Christopher Payne brings this putative class action against Defendant Sieva Networks, Inc. d/b/a Matrack based on allegations that Matrack is “violating the Telephone Consumer Protection Act (‘TCPA') by sending unsolicited telemarketing text messages to consumers whose phone numbers are registered on the National Do Not Call Registry (‘DNC').” ECF No. 1 at 1. He alleges that he “uses his cell phone number for personal use only,” and that the number “is not associated with a business.” Id. ¶ 20. He further alleges that he “registered a USDOT [United States Department of Transportation] number,” and that shortly thereafter, he received unsolicited text messages from Matrack to his cell phone number. Id. ¶¶ 27-32; see also ECF No. 22 at 6 (Payne's opposition brief, stating that he “registered a USDOT number using form MCS-150 in his personal name using his residential cell phone number,” and providing a screenshot showing his USDOT number as 4161754).
Payne seeks to represent the following class:
All persons in the United States who from four years prior to the filing of this action through class certification (1) Matrack texted more than one time, (2) within any 12-month period, (3) where the person's residential telephone number had been listed on the National Do Not Call Registry for at least thirty days, (4) for substantially the same reason Defendant texted Plaintiff.Id. ¶ 35. Matrack has moved to deny class certification. The Court finds this motion suitable for resolution without oral argument, see Fed.R.Civ.P. 78(b); Civil L.R. 7-1(b), and will grant the motion.
To obtain class certification, “plaintiffs must make two showings.” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 66e (9th Cir. 2022) (en banc). First, they must satisfy the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a) of the Federal Rules of Civil Procedure:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (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). Second, they “must show that the class fits into one of three categories” under Rule 23(b). Olean, 31 F.4th at 663. Payne invokes Rule 23(b)(3), which requires the Court to find “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). Matrack contends that Payne cannot show either predominance or superiority.
The complaint cites both Rule 23(b)(2) and Rule 23(b)(3), ECF No. 1 ¶ 35, but Payne's opposition refers only to Rule 23(b)(3) and does not argue that the Court should certify a class under Rule 23(b)(2), see ECF No. 22.
Payne argues that Matrack's motion to deny class certification is premature. However, the Ninth Circuit has made clear-in a case that Payne's opposition fails to acknowledge-that “Rule 23 does not preclude a defendant from bringing a ‘preemptive' motion to deny certification.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 939 (9th Cir. 2009). The Ninth Circuit has also explained-again in a case that Payne fails to cite-that discovery is not always required prior to deciding whether to certify a class:
Although in some cases a district court should allow discovery to aid the determination of whether a class action is maintainable, the plaintiff bears the burden of advancing a prima facie showing that the class action requirements of Fed.R.Civ.P. 23 are satisfied or
that discovery is likely to produce substantiation of the class allegations. Absent such a showing, a trial court's refusal to allow class discovery is not an abuse of discretion.Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985).
For the reasons discussed below, Payne has failed to make the required showing as to predominance. Payne asserts a single claim for relief under 47 U.S.C. § 227(c), which prohibits “telephone solicitations sent to residential telephone subscribers who have registered their phone numbers on the national do-not-call registry.” Chennette v. Porch.com, Inc., 50 F.4th 1217, 1220 (9th Cir. 2022) (emphasis added). “[R]egistered cell phone numbers that are used for both personal and business purposes are presumptively ‘residential' within the meaning of § 227(c),” but “defendants may rebut the presumption and show that the cell phone is a business line.” Id. at 1225. When “determining whether the presumption is rebutted,” courts must consider:
The Court does not reach the parties' arguments regarding superiority.
(1) how plaintiffs hold their phone numbers out to the public; (2) whether plaintiffs' phones are registered with the telephone company as residential or business lines; (3) how much plaintiffs use their phones for business or employment; (4) who pays for the phone bills; and (5) other factors bearing on how a reasonable observer would view the phone line.Id.
Payne would have the Court's analysis stop at the presumption that numbers on the DNC are residential. He ignores that the presumption can be rebutted, and what factors must be considered when determining whether a presumptively residential number falls outside the protections of the TCPA because it is actually a business line. Although Payne cites cases in which courts have granted class certification in TCPA cases, including by accepting expert testimony regarding which numbers are residential, none of those cases post-dates the Ninth Circuit's Chennette opinion or applied the test the court adopted. See ECF No. 22 at 13-15 (and cases cited therein). For example, “asking class members whether the line in question is a residential line during the class notification process,” as the court suggested in Braver v. Northstar Alarm Services, LLC, 329 F.R.D. 320, 329 (W.D. Okla. 2018), would not satisfy the multi-factor test established by Chennette.
The cases cited by Payne are also factually distinguishable. In one case, for instance, the court explained that it was reasonable for an expert to “assume[] that the phone numbers were residential because [the defendant's] agents were instructed to call residential real estate owners” and to “use[] a LexisNexis database to identify numbers associated with businesses or the government.” Bumpus v. Realogy Brokerage Grp. LLC, No. 3:19-cv-03309-JD, 2022 WL 867256, at *3 (N.D. Cal. Mar. 23, 2022). Here, by contrast, Matrack “targets trucking businesses” that have registered with the USDOT. ECF No. 20 ¶ 5. “Apart from responding to inbound requests to purchase its products, the only outbound calls Matrack places to sell its products and services are placed to numbers those businesses have made publicly available by listing them with the USDOT when they register as commercial truckers.” Id. ¶ 6. As Payne does not dispute, USDOT numbers are required for “[c]ompanies that operate commercial vehicles transporting passengers or hauling cargo in interstate commerce” and “commercial intrastate hazardous materials carriers who haul types and quantities requiring a safety permit.” Federal Motor Carrier Safety Administration (“FMCSA”), Do I Need a USDOT Number?, https://www.fmcsa.dot.gov/registration/do-i-need-usdot-number [https://perma.cc/Z2Q4-BS3U]. Some states, including Texas, where Payne resides, “require their intrastate commercial motor vehicle registrants to obtain a USDOT Number.” Id. Typing Payne's USDOT number into the query form on the FMCSA website lists Payne's name under “COMPANY INFORMATION” and states that he is an intrastate-only carrier of non-hazardous materials that has four drivers. SAFER Web - Company Snapshot CHRISTOPHER SPAYNE, https://perma.cc/D8NZ-RQ42. Payne does not offer any evidence that phone numbers-including what he contends is his personal cell phone number-are registered with the USDOT for any non-business purpose.
Payne is correct that “[w]hether Matrack can introduce proof to defeat [the residential] presumption in some cases is a matter for discovery.” ECF No. 22 at 13. However, the question raised by Matrack's motion is not whether the issue requires discovery; it is whether it can be resolved by common proof. Payne cites two cases concluding that consent issues can be addressed on a classwide basis if there is “little or no variation” in consent forms, True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 932 (9th Cir. 2018), or where “consent was obtained in an identical or substantially similar manner from class members,” McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142, 175 (S.D. Cal. 2019), class decertified in part on other grounds, 2020 WL 4582686 (S.D. Cal. Aug. 10, 2020). But, in this case, the issue is whether phone numbers contacted by Matrack-all of which were registered with the USDOT, which is some indication of a non-residential use-qualify as residential for purposes of the TCPA. “[R]esolving each phone number's residential status requires a fact-intensive inquiry. And the burden to show the residential status is on [Payne],” who, to obtain class certification, must “advance a viable theory employing generalized proof to establish residential status.” Hirsch v. USHealth Advisors, LLC, 337 F.R.D. 118, 131 (N.D. Tex. 2020). Payne has failed to do so. While it is possible that some of the numbers registered with the USDOT-including Payne's own-might qualify as residential under the fact-specific inquiry required by Chennette, Payne has made no argument as to how that question can be answered without individualized inquiries. Nor has he shown “that discovery is likely to produce substantiation of the class allegations” as to this question. Mantolete, 767 F.2d at 1424.
Under these facts, the Court finds it proper to deny certification without discovery. Matrack's motion to deny class certification is granted.
IT IS SO ORDERED.