United States District Court, M.D. Pennsylvania
ARI WEITZNER and ARI WEITZNER, M.D., P.C., Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
SANOFI PASTEUR, INC., formerly known as AVENTIS PASTEUR INC., and VAXSERVE, INC., formerly known as VACCESS AMERICA, INC., Defendants.
RICHARD CAPUTO UNITED STATES DISTRICT JUDGE
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).
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.
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).
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).
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).
Conduct at Issue:
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).
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 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).
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).
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,
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,
The State Court Action:
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).
27, 2008, Judge Minora 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,
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.
The Federal Action:
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).
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.
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.
Motion to Strike
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).
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.
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 ...