In Labou v. Cellco Partnership, 2014 WL 824225 (E.D.Cal. 2014), Judge England denied Plaintiff’s request for pre-certification discovery, and granted a pre-emptive defense motion to de-certify a class action under facts reminiscent of Soppet:
Plaintiff filed the present complaint on April 30, 2012. She alleges that Defendants began calling Plaintiff’s cellular phone number with an automated telephone dialing system to collect unpaid wireless bills owed by Plaintiff’s former brother-in-law, Ovidiu Cozac (“Cozac”).FN3 Plaintiff asserts that these calls were not for “emergency purposes,” nor did Plaintiff provide her “prior express consent” to receive calls from Verizon. Pl’s. Compl. at ¶ 12 (ECF No. 1). Plaintiff consequently alleges that such calls violated the TCPA. [FN3. The complaint refers to calls made to collect debt from Plaintiff’s daughter or from an “Obifo Cozac,” but there are no further references to any contacts made in that regard in the papers submitted by Plaintiff in opposition to this motion.] Verizon does not dispute calling Plaintiff but contends that it only “attempts to collect debts owed by its customers” through calls to “(a) the contact number(s) provided by the customer or (b) the Verizon-issued cellular number.” Defs’. Mot. to Deny Certification at 4, ECF No. 20. Defendants state that “Verizon never intentionally places a debt collection call to anyone other th an a customer,” unless such customer provides an incorrect contact number. Id.
The Court agreed that Plaintiff’s claims were not typical of the putative classmembers’ claims.
Defendants’ Motion presents four reasons why Plaintiff fails to meet the typicality requirement. First, they contend that Cozac’s involvement introduces idiosyncratic individual claims and defenses that the members of the proposed class will not be concerned with adjudicating. ECF No. 20 at 7. Second, Defendants assert that the issue of “prior written consent” differs significantly between non-customers and customers. Id. Third, because calls made to a Verizon issued phone are not chargeable against a Verizon customer’s monthly service plan, customer calls, as opposed to calls made to a non-customer like the Plaintiff, are not in violation of the TCPA. Id. at 7–8. Finally, as Verizon customers have agreed to have their claims arbitrated, Plaintiff’s resort to this Court in suing Verizon is not suitable for the proposed class members who are Verizon customers. Id. . . . Alternatively, Plaintiff argues that a distinction between customers and noncustomers is improper because such a distinction is not found within the TCPA itself. ECF No. 25 at 17. While this may be true, this distinction is necessary here to determine both the adequacy requirement of the proposed class as well as the typicality requirement under the Rule 23(a) analysis. ¶ Plaintiff cites to language that a claim is typical if it “arises from the same event or practice or course of conduct that gives rise to the claims of other class members and … [is] based on the same legal theory”. ECF No. 25 at 10–11. According to Plaintiff, her claim meets the typicality requirement because she “seeks to represent all persons” who have been called by Verizon by an automated telephone system without prior consent. Id. However, Plaintiff, as a non-Verizon customer, presents different claims than that of Verizon customers. To meet the requirements of a class, not only must the claims arise out of the same course of conduct, but also such claims must contain similar legal arguments to prove Defendants’ liability. Stearns, 655 F.3d at 1019. Even assuming Plaintiff’s claims arise from the same course of conduct, and although Plaintiff believes even Verizon customers have not provided prior consent to receive automated phone calls, the issues and facts surrounding Plaintiff’s claims are still unique. As the TCPA permits collection calls so long as the recipient is not being charged, Plaintiff’s circumstance of being a non-customer with a non-Verizon issued phone is atypical from the class of Verizon customers. See 47 U.S.C. § 227(b)(2)(C). Verizon customers have written contracts containing provisions both for automated calls upon prior written consent and for arbitration. No amount of discovery can erase these plain distinctions between Plaintiff and Verizon customers. Plaintiff’s claims are therefore not typical of the class as a whole and, consequently, she fails to qualify as a proper class representative.
The Court also found that Plaintiff was not an adequate class representative:
Plaintiff asserts that “it certainly cannot be the case that pure speculation by Verizon as to the adequacy or inadequacy of Plaintiff to serve as a class representative is a proper basis to grant Verizon’s preemptive motion to deny class certification, especially where Verizon has offered no evidence on the present motion.” ECF No. 25 at 24. However, Verizon need not provide evidence to prove that Plaintiff’s claim is inadequate. To the contrary, even under a motion to deny class certification, it is Plaintiff who bears the burden of showing she is an adequate representative. See Conn. Ret. Plans & Trust Funds, 660 F.3d at 1175; Dukes, 131 S.Ct. at 2551. Plaintiff’s contention that she is an adequate representative simply because she pled she is an adequate representative falls short of that burden. ¶ Plaintiff also argues that “mere speculation as to conflicts that may develop at the remedy stage is insufficient to support denial of initial class certification.” Id. (citing to Soc. Servs. Union, Local 535, Serv. Employees Int’l Union, AFL–CIO v. Santa Clara Cnty., 609 F.2d 944, 948 (9th Cir.1979). However, the court in Social Services Union found that more than mere speculation existed “when only part of a union’s membership is in the class for which certification is sought.” 609 F.2d at 948. Similarly, the plain differences that exist in this case between Verizon customers and non-Verizon customers amounts to far more than speculation. ¶ Because Plaintiff is not a Verizon customer, and because Plaintiff neither possess the same interest nor suffers the same injury as the majority of the proposed class, the Court finds that Plaintiff has not met her burden of satisfying the adequacy requirement under Rule 23(a)(4).
Accordingly, the Court granted the Defendant’s pre-emptive motion to de-certify the class:
In sum, Plaintiff fails to meet her burden of showing either that the claims as stated in the Complaint or defenses of the representative parties are typical of the claims or defenses of the proposed class. Plaintiff also fails to show that she will fairly and adequately protect the interests of the class. Finally, Plaintiff fails to show that as a non-Verizon customer her claims would be common to a class of mostly Verizon customers. Therefore, class certification fails and Defendants’ Motion is granted.