United States District Court, W.D. Washington, Tacoma
ROBERT TAYLOR, SR., individually and on behalf of others similarly situated, Plaintiff,
UNIVERSAL AUTO GROUP I, INC., a Washington corporation, d/b/a TACOMA DODGE CHRYSLER JEEP, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION WITH LEAVE TO AMEND COMPLAINT
KAREN L. STROMBOM, Magistrate Judge.
This matter comes before the Court on plaintiff's filing of a motion for class certification. The parties have consented to have this matter heard by the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 73 and Local Rule MJR 13. After having reviewed plaintiff's motion, defendant's response to that motion, plaintiff's reply thereto and the remaining record, the Court finds that for the reasons set forth below plaintiff's motion should be denied, with leave to amend his complaint to refine the class definitions in accordance with the findings contained herein.
FACTUAL AND PROCEDURAL HISTORY
I. The "Old" Tacoma Dodge Dealership
For some 25 years prior to 2009, Philip P. Schaefer operated and was the majority owner of a Dodge automobile dealership located in Tacoma, Washington ("old Tacoma Dodge"), under a franchise agreement with Chrysler Corporation ("Chrysler"). See ECF #56, Exhibit 3; ECF #61, p. 1, ¶ 2; ECF #62, p. 1, ¶ 1. In April 2007, old Tacoma Dodge sold plaintiff a Dodge pickup truck. See ECF #62, p. 2, ¶4. "As part of the information" old Tacoma Dodge "obtained from [plaintiff] in connection with this sale was his [cellular telephone number, which [was] then included in the Vehicle Buyer's Order... prepared in connection with that transaction." Id. at p. 2, ¶ 4, Exhibit A. During the time that old Tacoma Dodge was in business, "[a]n item of information... generally obtained from [its] customers was their phone number, as a means of contacting them." Id. at ¶ 3. Plaintiff also signed a "PRIVACY NOTICE" in connection with his April 2007 purchase, in which he acknowledged being informed that any information collected about him may be disclosed "to companies that perform marketing services or other functions on [old Tacoma Dodge's] behalf." ECF #63, p. 1, ¶ 1, Exhibit 1.
II. The "New" Tacoma Dodge Dealership
In early 2009, Chrysler entered into bankruptcy and terminated many of its automobile dealership franchise agreements, including the one with old Tacoma Dodge. See ECF #29, p. 1, ¶ 1; ECF #61, pp. 1-2, ¶ 3; ECF #62, p. 2, ¶ 5. In June 2009, Chrysler emerged from bankruptcy and awarded Philip W. Bivens a franchise for the Tacoma market area to sell Dodge, Chrysler and Jeep vehicles, which was incorporated as Universal Auto Group I, Inc. in the State of Washington in September 2009. See ECF #56, Exhibit 1; ECF #61, p. 2, ¶ 5. In October 2009, defendant entered into an asset purchase and sale agreement with old Tacoma Dodge to acquire most of old Tacoma Dodge's assets, including its "customer lists and customer files containing the names, addresses and contact information" of those customers. ECF #61, pp. 2-3, ¶¶ 7-10, Exhibit 1; ECF #62, p. 2, ¶¶ 6-7.
As a result of that agreement, old Tacoma Dodge's "customer database" was "pushed" to defendant's database electronically. ECF #56, Exhibit 2, Deposition of Steven Mark Crosetti ("Crosetti Dep."), 9:15-20. One such customer record transferred to Tacoma Dodge was the Vehicle Buyer's Order pertaining to plaintiff's April 2007 pick-up truck purchase. ECF #62, p. 2, ¶7. Mr. Bivens wanted old Tacoma Dodge's customer records so he could contact them to "let them know the Dodge dealership was back in business." ECF #61, p. 3, ¶ 10. Mr. Schaefer also was "concerned" that defendant "take care of" old Tacoma Dodge's customers, and wanted Mr. Bivens "to honor commitments [it] had made to its customers, " including "free lifetime oil changes, " which Mr. Bivens had "agreed... to honor" as part of the asset and purchase sale. Id. at ¶ 11; see also ECF #56, Crosetti Dep., 14:6-9 ("Part of [Mr.] Schaefer's... main concern was that he had been doing business with costumers for over 25 years, and he wanted to make sure that those people were taken care of.").
Because old Tacoma Dodge's dealership had been terminated, its customers "had no authorized Dodge dealership within the Tacoma market area to have warranty work done, or to have their repairs done." ECF #61, p. 3, ¶ 12. Further, during the fall of 2009, while defendant made efforts to prepare old Tacoma Dodge's former premises for opening, "[a]lmost every day, old Tacoma Dodge' customers would come by, knock on the windows and doors and ask if we were open or would be reopening soon." ECF #61, p. 3, ¶ 12.
III. The 2009 "Welcome" Call
In December 2009, defendant opened for business at the same location as old Tacoma Dodge. See ECF #29, p. 1, ¶¶ 1-2; ECF #61, pp. 3-4, ¶¶ 6-8, 12-13. Upon opening for business, defendant sent the same "welcome" message to the customers of old Tacoma Dodge "to let them know the dealership was now open." ECF #29, p. 1, ¶ 2. That message stated: "Just wanted to let you know, we're back in town, right here at 38th and South Tacoma Way. Drop on in, say Hi, ' or grab a cup of coffee.'" ECF #56, Crosetti Dep. 15:13-17; see also id. at 17:6-10; see also ECF #61, p. 4, ¶ 13. Plaintiff was among those customers who received the "welcome" message in December 2009. See ECF #56, Crosetti Dep. 111:15-25, 112:10-22, Exhibit 5; ECF #61, p. 4, ¶ 14. The message was sent to the same cellular number old Tacoma Dodge obtained from plaintiff in connection with the April 2007 transaction. See ECF #63, Exhibit 2.
While customers who received the message and then stopped by would have been able to buy a car if they wanted to, "that wasn't why that message was sent." ECF #56, Crosetti Dep., 17:14-24. Rather it was for old Tacoma Dodge's customers "to simply stop by and realize that Mr. Schaefer had made arrangements for them to be taken care of, although he was no longer the dealer." ECF #61, p. 4, ¶ 13. Nor was the purpose to solicit a return telephone call from those customers. See id. Indeed, it appears no telephone number was provided by defendant in the "welcome" message for old Tacoma Dodge's customers to call. See id. The "welcome" message was recorded by Mr. Bivens via a telephone call made to OneCommand - a Chrysler "preferred vendor" headquartered in Ohio - and then OneCommand sent the message to the telephone numbers from the customer list defendant purchased from old Tacoma Dodge and electronically transferred to OneCommand. ECF #29, pp. 2-3, ¶ 7; ECF #56, Crosetti Dep. 19:13-14, 20:15-25, 21:2-25, 22:2-4, 29:7-12, 16-25.
IV. The 2011 and 2012 Thank You and Service Reminder Calls
On three occasions during the months of February 2010, and November 2010, plaintiff and his wife "had a car serviced by" defendant. ECF #61, p. 4, ¶ 16; see also ECF #29, p. 2, ¶¶ 3, 5-6. It was defendant's policy that each time customers - including plaintiff and his wife - came into the dealership for service work, "to have the service advisor or whomever they dealt with ask them their preferred method of contact, and either note it on the service order or verify its accuracy if it already was preprinted on the service order based upon a prior contact with them in which they provided a number as their preferred method of contact." ECF #61, p. 5, ¶ 17; see also ECF #29, p. 2, ¶¶ 4-5; ECF #56, Crosetti Dep. 35:19-25, 36:1-10, 46:10-16. Defendant's service records show that the same two telephone numbers were provided for plaintiff and his wife each time they brought a vehicle in for service. See ECF #29, p. 2, ¶¶ 4-6, Exhibits 1-3. Both were cellular numbers, one of which was the number that received the "welcome" message in December 2009. See id.; ECF #36, p. 7.
Prior to April or May 2011, defendant used its service personnel to contact customers via their preferred method of contact in regard to service performed on their vehicles. See ECF #56, Crosetti Dep. 55:21-25, 56:1-19. Starting in April or May 2011, defendant "began participating in a call program that Chrysler promoted as fostering positive customer relations" and "to help better customer satisfaction" through OneCommand. ECF #29, p. 2, ¶ 7; ECF #56, Crosetti Dep. 57:15-21, 95:19-25, 96:1-2. Known as the "Chrysler Digital DMS Marketing Program" ("DMS Marketing Program") OneCommand also described it in a "[w]elcome" email to defendant as a "special service" that "will drive sales and service opportunities to your dealership through targeted communications with your customers on a consistent basis in order to increase loyalty, retention and repurchase behavior." ECF #56, Exhibit 9.
Even after it began participating in the DMS Marketing Program, defendant continued to engage in the practice of asking its customers for their preferred method of contact in connection with all sales and services. See ECF #56, Crosetti Dep. 35:20-25, 36:1-10, 57:22-25, 58:1-14. Defendant used the DMS Marketing Program to electronically "push" customer information "on a daily basis" to OneCommand. Id. at 101:23-25. "The push was set up automatically, " such that each night after a particular repair order or sales transaction "would close, " that information was "pushed to OneCommand." Id. at 102:17-25. Defendant only used the DMS Marketing Program to communicate with its "active database, " that is, only with those customers who were "actively engaged" in having services be provided to them by defendant and who had given their preferred method of contact information. Id. at 110:2-18.
From a list of scripted messages OneCommand provided, defendant chose those it wished to record and have automatically sent to its active customers via their preferred method of contact, depending on the service or transaction involved. Id. at 104:18-25, 105:1-7, Exhibit 7; ECF #71, Exhibit 1, Deposition of Eric Frost 38:7-25, 39:1-25, 40:1-10. Plaintiff brought two vehicles in to defendant for maintenance and service work on July 6 and July 7, 2011, records for which indicate the same two telephone numbers were provided as were provided in 2010. See ECF #29, p. 3, ¶¶ 8-10, Exhibits 4-6. OneCommand records also indicate one service thank you call and four additional service reminder calls were made to the same cellular number provided in 2011 and 2012, that plaintiff provided in regard to the April 2007 pick-up truck purchase. See ECF #29, p. 3, ¶¶ 11-12, 14; ECF #61, p. 5, ¶¶ 19, 21; ECF #63, Exhibit 2.
The last service reminder call plaintiff received occurred on July 3, 2012. See ECF #29, p. 4, ¶ 14. That same day, defendant received an email from plaintiff stating it had violated the law and asking for money damages. See ECF #1, p. 5, ¶ 6.5; ECF #29, ¶ 14. Upon receipt of that email, defendant notified plaintiff that it would remove him "from the service reminder call program, " and also "notified OnceCommand to remove him, which it did." ECF #29, p. 4, ¶ 14. In October 2013, due to a change in Chrysler's customer relations program "from telephone to email, " defendant "ended its participation in the call program at that time." Id. at ¶ 16. Because of this, defendant's customers no longer may receive reminders by telephone. See id.
V. Plaintiff's Class Action Complaint
On April 1, 2013, plaintiff filed a class action complaint with this Court against defendant for violations of the Telephone Consumer Protection Act ("TCPA), 47 U.S.C. § 227 et seq., the Washington Automatic Dialing and Announcing Device statute ("WADAD"), RCW 80.36.400, and the Washington Consumer Protection Act ("WCPA"), RCW 19.86 et seq., seeking damages as well as declaratory and injunctive relief. See ECF #1. In his complaint, plaintiff defines both a National Class and a Washington State Subclass:
National Class: All persons in the United States who received a call on their cellular telephone line with a prerecorded message, initiated by or on behalf of Defendant, marketing Defendant's products and services, and without the recipient's prior express consent, at any time in the period that begins four years from the date of this complaint to trial.
Washington State Subclass: All telephone customers within the State of Washington who received a call on their telephone with a prerecorded message, initiated by or on behalf of Defendant and marketing Defendant's products and services, and made using an automatic dialing and announcing device for purposes of commercial solicitation, at any time for the period that begins 4 years from the date of this complaint to trial.
Id. at p. 5, ¶ 7.1. In addition to the relief noted above, plaintiff seeks certification of the above proposed classes and appointment of both himself and his counsel as representative and counsel for those classes. See id. at pp. 10-11.
On March 28, 2014, defendant filed a motion for summary judgment seeking to dismiss plaintiff's TCPA, WADAD and WCPA claims. See ECF #28. On July 1, 2014, the Court granted defendant's motion as to those calls made by OneCommand on behalf of defendant beginning in 2011, with respect to the TCPA claim (see ECF #50). On July 18, 2014, plaintiff filed his motion for class certification. See ECF #55. Plaintiff's motion for reconsideration of the Court's order granting in part defendant's motion for summary judgment was denied on October 3, 2014. See ECF #73. Accordingly, that portion of plaintiff's TCPA claim regarding the calls OneCommand made on defendant's behalf beginning in 2011, is no longer before the Court, and therefore is not entitled to class certification.
I. The TCPA
The Telephone Consumer Protection Act provides in relevant part:
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-
(A) 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-
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;
47 U.S.C. § 227(b)(1)(A)(iii). "The term automatic telephone dialing system' means equipment which has the capacity... to store or produce telephone numbers to be called, using a random or sequential number generator, " and "to dial such numbers." 47 U.S.C. § 227(a)(1). The TCPA thus makes it unlawful to call a telephone number assigned to cellular service using an automatic telephone dialing system or a prerecorded voice. See Grant v. Capital Mgmt. Serv., Inc., 449 Fed.Appx. 598, 600 (9th Cir. 2011); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009).
"The TCPA provides a private right of action for claims of calls made in violation of [that] Act." Smith v. Microsoft Corp., 2012 WL 2975712, *4 (S.D. Cal. July 20, 2012) (citing 47 U.S.C. § 227(b)(3)). Exempted from the TCPA's prohibition on automated or prerecorded calls are those "made with the prior consent of the called party." Satterfield, 569 F.3d at 955 (quoting 47 U.S.C. § 227(b)(1)(A)). "[T]he TCPA does not define "prior express consent, " but the Ninth Circuit has held "express consent" to mean "[c]onsent that is clearly and unmistakably stated." Id . (quoting Black's Law Dictionary 323 (8th ed. 2004)); Kolinek v. Walgreen Co., 2014 WL 3056813, *2 (N.D. Ill. July 7, 2014). "[E]xpress consent" has been found to exist where an individual "voluntarily provides" his or her telephone number "to another." Pinkard v. Wal-Mart Stores, Inc., 2012 WL 5511039, at *6 (N.D. Ala. 2009) (citing In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769, ¶ 31 (Oct. 16, 1992) ("[P]ersons who knowingly release their phone numbers have in effect given their invitations or permission to be called at the number which they have given, absent instructions to the contrary.").
"[E]xpress consent' is not an element of a TCPA plaintiff's prima facie case, but rather is an affirmative defense for which the defendant bears the burden of proof." Grant, 449 F.ed. Appx. at 600 n. 1; see also Levy v. Receivables Performance Mgmt., LLC, 972 F.Supp.2d 409, 417 (E.D.N.Y. 2013). Further, it is generally "the party on whose behalf" the call was made that "bears the ultimate responsibility for any [TCPA] violations." In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 FCC Rcd. 12391, 12393, ¶ 13 (Aug. 7, 1995); see also In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 20 FCC Rcd. 13664, 13667, ¶ 7 (Aug. 17, 2005) (calls placed by third party on behalf of company for whom those calls were made are treated as if that company itself had placed them).
II. WADAD and the WCPA
The WADAD statute reads in ...