United States District Court, D. Arizona
Joanne Knapper, on behalf of herself and others similarly situated, Plaintiff,
Cox Communications, Inc., Defendant.
March 28, 2017, Plaintiff filed a complaint against Defendant
for violating the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. (Doc. 1.)
Plaintiff alleges, on behalf of a class, that Defendant
“routinely violates [the TCPA] by using an automatic
telephone dialing system [or an artificial or prerecorded
voice] to place non-emergency calls to numbers assigned to a
cellular telephone service, without prior express
consent.” (Doc. 1 ¶¶ 3, 11.)
28, 2018, Plaintiff filed a motion for class certification
and appointment of class counsel. (Doc. 43.) On August 14,
2018, Defendant filed its response. (Doc. 58.) On August 30,
2018, Plaintiff filed her reply. (Doc. 61.) Both parties have
filed supplemental authority notices. (Docs. 66, 67, 69, 72,
78, 79, 82, 86, 87.)
argues for certification under Federal Rule of Civil
Procedure (“Rule”) 23(b)(3). She seeks to bring
this action on her own behalf, as well as on the behalf of
the following class: “[a]ll persons and entities
throughout the United States (1) to whom Cox Communications,
Inc. placed a call, (2) directed to a number assigned to a
cellular telephone service, but not assigned to a Cox
Communications, Inc. subscriber, (3) in connection with its
efforts to collect a past due residential account balance,
(4) via its Avaya dialers or with an artificial or
prerecorded voice, (5) from March 28, 2013 through the date
of class certification.” (Doc. 43 at 2.) Defendant
responds that individual issues concerning consent
predominate, that Plaintiff is neither an adequate nor a
typical class representative, and that a class action is not
a manageable or superior way to proceed. (Doc. 58.) It also
argues that none of its relevant call logs reflect actual
calls made by Defendant to wrong numbers or that the
purported wrong numbers are actually “wrong.”
(Doc. 58.) Defendant does not, however, challenge the class
of the Federal Rules of Civil Procedure governs class
actions. A member of a class may sue as a representative
party if the member satisfies four prerequisites: numerosity,
commonality, typicality, and adequacy of representation.
Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581,
588 (9th Cir. 2012); Fed.R.Civ.P. 23(a). After satisfying the
prerequisites, the plaintiff must then show that the class
falls into one of three categories under Rule 23(b).
Fed.R.Civ.P. 23(b). Here, Plaintiff seeks certification under
Rule 23(b)(3). Under Rule 23(b)(3), a plaintiff must show
that 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 resolving the controversy. Fed.R.Civ.P.
wishing to proceed through a class action must actually
prove-not simply plead-that their proposed class
satisfies each requirement of Rule 23[.]”
Halliburton Co. v. Erica P. John Fund, Inc., 134
S.Ct. 2398, 2412 (2014); see Comcast Corp. v.
Behrend, 569 U.S. 27, 33 (2013). The court must
rigorously analyze the facts of a class action to ensure that
it comports with Rule 23. See Amgen Inc. v. Connecticut
Ret. Plans & Tr. Funds, 568 U.S. 455, 465 (2013);
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351
(2011). In doing so, however, the court will consider merits
questions only to the extent relevant to determining whether
the proposed class has met Rule 23's requirements.
Amgen Inc., 568 U.S. at 465-66.
TCPA prohibits “any person ... to make any call (other
than a call made for emergency purposes or made with the
prior express consent of the called party) using any
automatic telephone dialing system or an artificial or
prerecorded voice ... to any telephone number assigned to a
... cellular telephone service ….” 47 U.S.C.
§ 227(b). The TCPA creates a private right of action for
statutory damages in the amount of $500 per violation (or up
to $1, 500 if the defendant violated this subsection
willfully or knowingly). 47 U.S.C. § 227(b)(3).
proposed class satisfies the numerosity requirement if class
members are so numerous that joinder would be impractical.
Fed.R.Civ.P. 23(a)(1). While no absolute limit exists,
numerosity is met when general knowledge and common sense
indicate that joinder would be impracticable. Horton v.
USAA Cas. Ins. Co., 266 F.R.D. 360, 365 (D. Ariz. 2009)
(citing Garrison v. Asotin County, 251 F.R.D. 566,
569 (E.D. Wash. 2008)). Generally, forty or more members will
satisfy the numerosity requirement. Id.
argues that “Defendant identified more than 600, 000
cellular telephone numbers that it associates with its
residential accounts, and that are likely wrong
numbers.” (Doc. 43 at 8.) She also argues that
Defendant made millions of autodialed calls per year and
thousands even after its own internal records designated
those calls as wrong numbers. (Doc. 43 at 8.) Though
Defendant argues that the putative class size is less than
600, 000, it does not provide an exact estimate of the class
size. Here, the Court is satisfied, based on Defendant's
call records, that the putative class members are
sufficiently numerous to make joinder impracticable. Even
assuming what the Court construes as Defendant's lowest
estimate of the putative class-30% of 11, 920 phone numbers
(see doc. 58 at 8 n. 12)-that leaves 8, 344 putative
class members. Therefore, the Court finds that the putative
class size here satisfies the numerosity requirement.
proposed class satisfies the commonality requirement if there
is at least one question of fact or law common to the class.
Fed.R.Civ.P. 23(a)(2). The claims must “depend upon a
common contention such that determination of its truth or
falsity will resolve an issue that is central to the validity
of each claim in one stroke.” Mazza v. Am. Honda
Motor Co., 666 F.3d 581, 588 (9th Cir. 2012) (quoting
Wal-Mart, 564 U.S. at 350) (internal quotations