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Weitzner v. Sanofi Pasteur, Inc.

United States District Court, M.D. Pennsylvania

September 6, 2017

ARI WEITZNER and ARI WEITZNER, M.D., P.C., Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
SANOFI PASTEUR, INC., formerly known as AVENTIS PASTEUR INC., and VAXSERVE, INC., formerly known as VACCESS AMERICA, INC., Defendants.

          MEMORANDUM

          A. RICHARD CAPUTO UNITED STATES DISTRICT JUDGE

         This case concerns a number of facsimiles that were allegedly sent from Defendants to Plaintiffs in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227(b)(1)(C).

         Presently before the Court is: (1) a Motion to Strike the November 29, 2016 Declaration of Ari Weitzer, M.D (“Third Weitzner Declaration”) filed by Defendants Sanofi Pasteur, Inc., and Vaxserve, Inc. (collectively “Defendants”); (2) a Motion to Strike Plaintiffs' Answer to Defendants' Statement of Facts filed by Defendants; (3) a Motion for Summary Judgment filed by Defendants; and (4) a Motion for Class Certification filed by Plaintiffs Ari Weitzner and Ari Weitzner, M.D., P.C. (collectively “Plaintiffs”). Because the Third Weitzner Declaration is not a sham affidavit and the information it contains is capable of admission at trial, the Motion to Strike the Third Weitzner Declaration will be denied. The Motion to Strike Plaintiffs' Answer to Defendants' Statement of Facts, however, will be granted in part as Plaintiffs' failed to comply with the Local Rules. Defendants' Motion for Summary Judgment will be granted in its entirety because American Pipe tolling does not apply to shield those who initiated a prior action and subsequently assert the same facts and claims in a new action. Because Defendants' Motion for Summary Judgment will be granted, Plaintiffs' Motion for Class Certification will be moot.

         I. Factual Background

         A. The Parties

         1. Plaintiffs:

         Plaintiff Ari Weitzner, M.D. (“Dr. Weitzner”), is an ophthalmologist who previously maintained his office in Brooklyn, New York. (Doc. 1, ¶ 6). Dr. Weitzner is currently employed as an employee of Union Square Eye Care. (Doc. 106, ¶ 8). Previously, Dr. Weitzner practiced though his own professional corporation, Ari Weitzner, M.D., P.C.. (Doc. 116, ¶ 2).

         Ari Weitzner, M.D., P.C. (“P.C.”), is also a Plaintiff in the instant case. (Doc. 1, ¶ 7). The P.C. is a New York corporation that maintains an “active” status with the New York Secretary of State. (Doc. 116, Ex. A). While the P.C. remains active on paper, it is undisputed that the P.C. has closed; it has no assets, and no employees. (Doc. 106, ¶¶ 7, 44-46). Notably, Dr. Weitzner is the sole shareholder of the P.C.. (Doc. 106, ¶ 6).

         2. Defendants:

         Defendant Sanofi Pastuer, Inc. ("Sanofi") is a Delaware corporation that manufactures vaccines. (Doc. 106, ¶ 1). Defendant VaxServe, Inc. ("VaxServe") is a pharmaceutical distribution company based in Pennsylvania. (Doc. 106, ¶ 2). VaxServe is a wholly owned subsidiary of Sanofi, with a separate board of directors, business records, employees, and principal place of business. (Doc 106, ¶ 3).

         B. Conduct at Issue:

         Beginning on or prior to April 21, 2004, Plaintiffs allege that Defendants were engaged in a nationwide fax-advertising campaign in order to promote the sale of commercial products. (Doc 1, ¶¶ 10-11, 17).

         On April 21, 2004, Plaintiffs received a fax advertisement (“First Fax”) via the fax machine at the offices of the P.C. (Doc. 106, at 23, 26). The First Fax offered discounts on pharmaceutical goods by various manufacturers. (Doc. 87, Ex. A). The fax denoted "VaxServe" in the upper right-hand corner. (Doc. 87, Ex. A). The fax does not indicate that it was sent by any party other than VaxServe. (Doc. 87, Ex. A; Doc. 106, at 25). Plaintiffs claim[1] to have received a second fax, also marked with the “VaxServe” stamp, on March 22, 2005 (“Second Fax”). (Doc. 116, at ¶ 7, Ex. C). The parties dispute who received the First and Second Fax. But, it has been admitted that the fax machine and number that received both faxes were registered to Dr. Walter Weitzner (Doc. 106, 27-29).

         VaxServe admits to sending a number of advertisements during the time alleged by Plaintiffs; sending such advertisements were part of the company's business. (Doc. 106, ¶¶ 68-69). The decision regarding what products to include on any given advertisement was made internally at VaxServe. (Doc. 106, ¶ 68). In fact, none of the manufacturers, including Defendant Sanofi Pasteur, paid to include their products on the advertisements that were subsequently faxed. (Doc. 106, ¶ 69). In the instant matter, neither Plaintiffs nor Defendants are aware of how VaxServe came to possess the number for the fax machine in Dr. Weitzner's office. (Doc. 106, ¶¶ 70-73).

         It was Dr. Weitzner's practice to collect unsolicited faxes received at his office and send them to Attorney Todd Bank, one of Plaintiffs' attorneys, once a week. (Doc. 106, ¶ 20). After reviewing the faxes that were passed to him by Dr. Weitzner, Attorney Bank would file charges against the company responsible for the unsolicited faxes. (Doc. 106, ¶ 21).[2]

         C. The Complaint:

         On November 26, 2011 Plaintiffs' filed this putative class action in this Court, alleging a violation of the TCPA. The class that Plaintiffs allege to represent has shifted a number of times over the course of this litigation. First, the Complaint defined the putative class as:

[A]ll persons or entities (I) whose fax numbers were licensed, rented, or purchased by Defendants VaxServe or Sanofi from List Strategies, Inc.; (ii) whose fax numbers did not exist in Defendants' database on the date of Defendants' receipt thereof from List Strategies, Inc.; and (iii) who received an unsolicited fax advertisement transmitted to them on behalf of Defendants by VisionLab, Inc., Westfax, Inc., or Velofax LLP between February 14, 2005 and the date of the resolution of this lawsuit.

(Doc. 106, ¶ 15). But, in Plaintiffs' Memorandum in Support of their Motion for Class Certification, Plaintiffs identify the putative class as:

[A]ll persons or entities to whom VisionLab, Inc., WestFax, Inc. or Velofax LLP sent facsimiles on behalf of Defendants between February 14, 2005 and the date of the resolution of this lawsuit for whom Defendants' only source of the name of the recipient was a list that had been provided to Defendants by List Strategies, Inc.

(Doc. 106, ¶ 16). Yet another change in the definition of the class is evident in Dr.Weitzner's Declaration in Support of the Motion for Class Certification. There, Plaintiffs defined the putative class as:

[A]ll persons or entities that, between February 14, 2005, and the date of the resolution of this lawsuit, received faxes that were sent to them solely as a result of their fax numbers having been provided to the defendants by a company called List Strategies, Inc.

(Doc. 106 ¶ 17). Lastly, in the Third Weitzner Declaration and Plaintiffs' Memorandum in Opposition to Defendants' Motion to Strike, Plaintiffs make a final revision and define the class as beginning on February 14, 2001 and ending at the resolution of this action. (Doc. 152, at 19).

         II Procedural Background

         A. The State Court Action:

         Litigation remains pending in the Lackawanna County Court of Common Pleas involving Dr. Weitzner and the same Defendants for an alleged TCPA violation stemming from the same April 21, 2004 fax. (Doc. 106, ¶ 32). Dr. Weitzner commenced the state-court action with the filing of a class action complaint on February 14, 2005, seeking to represent a class of persons who received unsolicited fax advertisements from Defendants. The class identified in the state-court action was defined as: "[Dr. Weitzner] and all other individuals who received an unsolicited fax advertisement from Defendants between January 2, 2001 and the date of the resolution of this lawsuit." (Doc. 106, ¶ 31). Notably, the P.C. was neither a named-plaintiff nor identified as a putative class member in the state-court action. (Doc. 106 ¶¶ 34-36).

         On June 27, 2008, Judge Minora[3] issued an opinion and order ruling on Defendants' motion for summary judgment and Dr. Weitzner's motion to amend the complaint's class definition. (Doc. 106, ¶ 50). The opinion concluded that a class could include only Pennsylvania-resident fax recipients, rather than the proposed nationwide class, and held that Dr. Weitzner was not a proper representative plaintiff for class action purposes. (Doc. 106, ¶ 50). Additionally, Judge Minora found that Dr. Weitzner presented unique questions of fact that would not be common to the class. (Doc. 106, ¶ 52). Judge Minora permitted Dr. Weitzner to proceed on his individual TCPA claim, but found that a two-year statute of limitations applied to the TCPA claims under Pennsylvania law, and thus limited Dr. Weitzner's claims to faxes he received within two years of the date on which the complaint was filed. (Doc. 106, ¶ 50).

         On July 25, 2008, Dr. Weitzner filed a notice of appeal from the state court's June 27, 2008 order. On June 3, 2009, the Superior Court concluded that the appeal w as interlocutory and premature, and therefore quashed the appeal. The Superior Court noted that no motion for class certification was ever filed or decided by the Court of Common Pleas.

         B. The Federal Action:

         Plaintiffs commenced this action on November 26, 2011. (Doc. 1). On February 6, 2012, Defendants filed their Motion for Abstention, or in the alternative, to Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, to Stay Proceedings. (Doc. 20). On May 14, 2012, this Court denied Defendants' Motion, specifically noting that it was not clear from the face of the complaint that the statute of limitations barred the current action, and thus it was not appropriate to dismiss at that time. (Doc. 37). The Court also declined to address the applicability, if any, of American Pipe tolling at that time. (Doc. 37, at 15).

         On November 12, 2013, Defendants filed their Answers and Affirmative Defenses to Plaintiffs' Complaint. (Doc., at 57, 58). Just three days later, on November 15, 2013, Defendants served Offers of Judgment pursuant to Federal Rule of Civil Procedure 68 upon Plaintiffs; offering for judgment to be entered against Defendants for the maximum statutory relief available to Plaintiffs. (Doc. 60-1, at 1-2). Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on December 4, 2013. (Doc. 59). This Motion was denied by this Court by Order and Opinion dated March 12, 2014. (Doc. 68). The Third Circuit affirmed on April 6, 2016.

         Plaintiffs' filed the instant Motion for Class Certification on June 28, 2016. (Doc. 86). Defendants filed the instant Motion for Summary Judgment on October 17, 2016. (Doc. 104). Pursuant to the Local Rule of the Middle District of Pennsylvania, Defendants filed a Statement of Facts detailing the material facts at issue in the litigation. Plaintiffs filed their Answer to Defendants' Statement of Facts on November 29, 2016. (Doc. 118). Defendants have also filed two Motions to Strike: Motion to Strike November 29, 2016 Declaration of Ari Weitzner, M.D. (Doc. 143), and Motion to Strike Plaintiffs' Answer to Defendants' Statement of Facts. (Doc. 145). These Motions were filed on January 27, 2017. All four Motions pending in this action are ripe for review.

         III. Legal Standard

         A. Motion to Strike

         Defendants move to strike the Third Weitzner Declaration and portions of Plaintiffs' Answer to Defendants' Statement of Facts from the record. Although neither Rule 56 nor Local Rule 56.1 specifically provide for a motion to strike, courts have held that a party wishing to challenge statements of fact made by opponents for defect under either Rule should move to strike, or face waiver of their objection. See, e.g., In Re Unisys Sav. Plan Litig., 74 F.3d 420, 437 n.12 (3d Cir. 1996) (explaining that the proper vehicle for an objection to a violation of Rule 56 is a Motion to Strike); Hartshorn v. Throop Borough, No. 3:07-CV-01333, 2009 WL 761270, at *8-9 (M.D. Pa. Mar. 19, 2009) (striking Plaintiffs' Statement of Facts from the record for non-compliance with Local Rule 56.1).

         Federal Rule of Civil Procedure 56 notes that affidavits in support or opposition to a motion for summary judgment shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Fed.R.Civ.P. 56(c)(4). If portions of an affidavit do not meet this standard, it is appropriate for the court to disregard the deficient portions of the record for the purpose of resolving a motion for summary judgment. See In Re Unisys Sav. Plan Litig., 74 F.3d at 437 n.12.

         Further, The United States District Court for the Middle District of Pennsylvania provides in its Local Rules that:

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried. Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements. All material facts ...

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