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Knapper v. Cox Communications Inc.

United States District Court, D. Arizona

February 6, 2019

Joanne Knapper, on behalf of herself and others similarly situated, Plaintiff,
v.
Cox Communications, Inc., Defendant.

          ORDER

         I. Background

         On 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.)

         On June 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.)

         II. Discussion

         Plaintiff 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 definition.

         III. Analysis

         Rule 23 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. 23(b)(3).

         “[P]laintiffs 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.

         The 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).

         a. Rule 23(a)

         1. Numerosity

         A 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.

         Plaintiff 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.

         2. Commonality

         A 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 ...


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