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Hawk Valley, Inc. v. Taylor

United States District Court, Eastern District of Pennsylvania

March 31, 2014

HAWK VALLEY, INC., a Pennsylvania Corporation, Individually and as the Representative of a Class of Similarly Situated Persons, Plaintiff
v.
ELAINE G. TAYLOR, and ENVIRONMENTAL PROCESS SYSTEMS, INC., Defendants

ALAN C. MILSTEIN, ESQUIRE BRIAN J. WANCA, ESQUIRE PHILLIP A. BOCK, ESQUIRE On Behalf of Plaintiff.

FRANCIS J. DEASEY, ESQUIRE ATHENA O. PAPPA, ESQUIRE On Behalf of Defendant Elaine G. Taylor.

ERIC J. SAMORE, ESQUIRE THOMAS F. REILLY, ESQUIRE ALLAN SCHOLLER, ESQUIRE On Behalf of Defendant Environmental Process Systems, Inc.

OPINION

JAMES KNOLL GARDNER, United States District Judge.

TABLE OF CONTENTS

Page

SUMMARY OF DECISION ............................................ 4

JURISDICTION ................................................... 5

VENUE .......................................................... 5

PROCEDURAL HISTORY ............................................. 5

STANDARD OF REVIEW ............................................ 10

Federal Rule of Civil Procedure 23 .......................... 10

Telephone Consumer Protection Act ........................... 13

FACTS ......................................................... 16

Parties ..................................................... 16

Business to Business Solutions .............................. 18

InfoUSA ..................................................... 19

June 17, 2006 Fax Advertisement ............................. 20

CONTENTIONS OF THE PARTIES .................................... 22

Contentions of Plaintiff .................................... 22

Rule 23(a) Requirements ................................... 22

Rule 23(b)(3) Requirements ................................ 23

Contentions of Defendants ................................... 24

Rule 23(a) Requirements ................................... 24

Rule 23(b)(3) Requirements ................................ 27

Predominance ............................................. 27

Superiority .............................................. 30

Alternative Definition of Class ........................... 30

Defendants’ Supplemental Briefs ........................... 31

DISCUSSION .................................................... 32

Rule 23(a) Requirements ..................................... 32

Numerosity ................................................ 32

Commonality ............................................... 32

Typicality ................................................ 34

Adequacy .................................................. 35

Class Counsel ............................................ 35

Class Representative ..................................... 37

Rule 23(b)(3) Requirements .................................. 40

Predominance .............................................. 40

Scope of Authority ....................................... 48

Opt-Out-Notice Dispute ................................... 50

Superiority ............................................... 57

CONCLUSION .................................................... 58

This matter is before the court on Plaintiff’s Motion for Class Certification filed July 19, 2013.1 For the reasons expressed below, I grant the motion for class certification.[1]

SUMMARY OF DECISION

The within matter is a putative class action in which plaintiff Hawk Valley, Inc. (“Hawk Valley”) asserts a claim, on its own behalf and on behalf of all others similarly situated, against defendants Elaine G. Taylor and Environmental Process Systems, Inc. (“EPSI”) for sending an unsolicited facsimile advertisement to plaintiff and the putative class members on June 17, 2006 in violation of the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. 227.

In the within motion, plaintiff seeks to certify a class defined as “All persons sent one or more faxes on June 17, 2006 from ‘Environmental Process Systems, Inc.’ that advertised ‘EPSI’s Grass Graber’ as a ‘New way to treat your equipment wash water.’”[2] Plaintiff requests the court to appoint it as the class representative and its attorneys, whose appearances are listed above, as class counsel.

Because plaintiff has demonstrated that the four requirements necessary for class certification under Rule 23(a) of the Federal Rules of Civil Procedure, and the two requirements necessary for class certification under Rule 23(b)(3) are each satisfied here, I grant plaintiff’s motion and certify the class.

JURISDICTION

Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331 and upon the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).

VENUE

Venue is proper because the events giving rise to plaintiff’s claim allegedly occurred in the Borough of Denver, Lancaster County, Pennsylvania, which is within this judicial district. See 28 U.S.C. §§ 118 and 1391(b)(2).

PROCEDURAL HISTORY

Plaintiff initiated this putative class action on February 24, 2010 by filing its Class Action Complaint (“Class Complaint”).[3] On June 17, 2010 Defendants, Elaine G. Taylor and Environmental Process Systems, Inc.’s Motion to Dismiss Plaintiff’s Complaint with Prejudice Pursuant to Fed.R.Civ.P. 12(b)(6)[4] was filed.

On February 28, 2011 I issued an Order and accompanying Opinion[5] dismissing plaintiff's Class Complaint with leave to file an amended complaint establishing this court's subject matter jurisdictions.

On March 25, 2011 plaintiff filed a First Amended Class Action Complaint[6] (“Amended Class Complaint”). On April 14, 2011 Defendants, Elaine G. Taylor and Environmental Process Systems, Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint with Prejudice Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)[7] was filed.

On March 30, 2012 I issued an Order and accompanying Opinion[8] denying defendants’ motion to dismiss plaintiff’s Amended Class Complaint. Defendants, Elaine G. Taylor and Environmental Process Systems, Inc.’s Answer and Affirmative Defenses to Plaintiff’s First Amended Complaint[9] was filed on April 16, 2012.

I conducted a status conference pursuant to Rule 16 of the Federal Rules of Civil Procedure by telephone conference call on August 23, 2012. The parties did not submit (separately or together) a report, or reports, of a pre-status-conference meeting prior to the August 23, 2012 status conference (as required by Rule 26(f) of the Federal Rules of Civil Procedure). Because the parties were unable to reach an agreement at the August 23, 2012 conference, I directed the parties at the status conference to exchange the mandatory self-executing discovery disclosures require by Rule 26(a), and to submit a proposed discovery plan as required by Rule 26(f) on or before August 31, 2012. I also scheduled a second status conference for September 10, 2012.[10]

The parties were unable to agree upon a proposed schedule and structure concerning this matter, and on August 24, 2012, plaintiff and defendants submitted separate proposed case management plans.[11]

Upon consideration of the parties proposed plans, I established, among other dates and deadlines, a June 21, 2013 deadline for completion of all class discovery, and a July 19, 2013 deadline for plaintiff to file a motion seeking class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure.

On April 9, 2013 Defendant Elaine G. Taylor’s Motion for Summary Judgment was filed, seeking summary judgment in her favor and against plaintiff on its claim against her in this matter.[12] On April 22, 2013 defendant Taylor filed a Motion for Leave to File Late Third Party Complaint.[13]

Plaintiff’s Motion for Class Certification was filed on July 19, 2013, together with supporting materials.[14] Defendants Taylor and EPSI each filed opposition documents in response to the motion for class certification on August 16, 2013.[15]

On September 25, 2013 Defendant, Environmental Process Systems, Inc.’s Motion to Dismiss For Lack of Subject Matter Jurisdiction Pursuant to Fed.R.Civ.P. 12(b)(1) was filed. On September 26, 2013 Defendant, Elaine G. Taylor’s Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Rule 12(b)(1) was filed.[16]

I denied each defendant’s respective motion to dismiss by (and for the reasons expressed in) my Order dated October 29, 2013 and filed October 30, 2013.[17] I denied defendant Taylor’s motion to file a late third-party complaint by (and for the reasons expressed in) separate Order dated October 29, 2013 and filed October 30, 2013.[18] I denied defendant Taylor’s motion for summary judgment by (and for the reasons expressed in) an Order dated and filed November 7, 2013.[19]

I held a hearing on Plaintiff’s Motion for Class Certification on November 8, 2013. At the class certification hearing, each party moved -- and in the absence of objection the court received -- in evidence the exhibits upon which each intended to rely in support of their respective positions concerning class certification.[20] The parties, through counsel, then made closing arguments in support of their respective positions concerning the issue of class certification. At the conclusion of the hearing, I took the matter under advisement.

At the November 8, 2013 hearing, counsel for each defendant requested seven days to submit a joint memorandum of law concerning an issue which arose during argument at the hearing. I granted that request and gave defendants until November 15, 2013 to file a joint memorandum. I gave plaintiff until November 22, 2013 to file a response to the joint memorandum to be filed by defendants. Defendants’ joint memorandum and plaintiff’s response were timely filed on those dates.[21]

Additionally, while this matter has been under advisement following the November 8, 2013 hearing, plaintiff and defendants sought, [22] and I issued Orders granting, [23] leave to present additional case law which they contend is pertinent to the issue of class certification in this matter.

Hence this Opinion.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 23

Rule 23 of the Federal Rules of Civil Procedure contains the prerequisites for class certification. Wal–Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011). A class may be certified only if the court is satisfied after a “rigorous analysis” that the prerequisites of Rule 23 have been satisfied. Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006).

To obtain class certification, plaintiffs must establish that each requirement of Rule 23(a) is met, together with one of the requirements of Rule 23(b). Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994).

Pursuant to Rule 23(a), a class may be certified 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 ...

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