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Dorfman v. Albertson's, LLC

United States District Court, D. Idaho

January 7, 2020

ROBERT DORFMAN, individually and on behalf of all others similarly situated, Plaintiff,
v.
ALBERTSON'S, LLC, a Delaware corporation, doing business in California as SAV-ON PHARMACY, Defendant.

          MEMORANDUM DECISION AND ORDER

          David C. Nye Chief U.S. District Court Judge

         I. INTRODUCTION

         Pending before the Court is Defendant Albertson's, LLC's (“Albertsons”) Second Motion to Deny Class Certification Pursuant to Rule 23(c)(1). Dkt. 34. Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). For reasons set forth below, the Court GRANTS Albertsons' Motion.

         II. BACKGROUND

         On February 27, 2018, Plaintiff Robert Dorfman filed a Class Action Complaint against Albertsons alleging that its prerecorded artificial voice telephone messages (“robocalls”) related to prescription pick-up that it made on behalf of “Sav-On Pharmacy” (“Sav-on”) violated the Telephone Consumer Protection Act of 1991 (“TCPA”). Dkt. 1. On May 2, 2018, Albertsons filed a motion to dismiss based on an affirmative statutory defense. Dkt. 4. The Court denied Albertsons' motion on October 18, 2018, finding the calls at issue did not, as a matter of law, fall within the “emergency purposes”[1] statutory exception to TCPA liability. Dkt. 24, at 10-11.

         On November 12, 2018, Albertsons filed a Motion to Deny Class Certification Pursuant to Rule 23(c)(1), challenging Dorfman's prima facie ability to establish that (1) Dorfman is a representative of the class whose claims he wishes to litigate as required under Rule 23(a); (2) common questions of fact predominate over individual issues as required under Rule 23(b)(3); and (3) class action is the superior method to resolve this issue as also required under Rule 23(b)(3). Dkt. 27. The Court found that Dorfman was not a member of the class he sought to represent and no common questions of fact predominated over individual issues, but it was possible that the class could be manageable (i.e., a superior method to resolve the issue). Dkt. 31.

         In considering Albertsons' Motion to Deny Class Certification, the Court relied on Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, (9th Cir. 1977), where the Ninth Circuit noted that where a party cannot make a prima facie showing of Rule 23's prerequisites, or show that discovery measures probably would produce information that substantiated the class action allegations, class certification may be properly denied without discovery. Id. at 1313. As Dorfman had failed to make a prima facie showing of Rule 23's prerequisites and had not attempted to show that discovery measures were likely to produce persuasive information substantiating the class action allegations, the Court denied class certification without discovery. However, because the Court thought it possible that Dorfman could define its class in a way that complied with Rule 23, it granted Dorfman leave to amend.

         Dorfman filed his First Amended Class Action Complaint on March 18, 2019. Dkt. 33. Once again, Dorfman brings this action under the TCPA on behalf of himself and all others similarly situated who received robocalls from, or on behalf of, Albertsons.

         Dorfman alleges that he received a call from, or on behalf of, Albertsons for him to pick up an “order” that he had never placed at Sav-on. More specifically, he alleges that he: (1) is not a customer of Sav-on; (2) has never given Sav-on consent to call his wireless number; (3) received approximately 21 automated phone calls on his cell phone from Defendant beginning on or around June 12, 2017, regarding a prescription ready for pickup and belonging to an unknown third party; and (4) has asked Defendant to stop calling him. Id. at ¶ 2. Approximately seven calls were received after July 10, 2017, when Dorfman had “asked Defendant to stop calling him.” Id.

         Pending before the Court is Albertsons' Second Motion to Deny Class Certification Pursuant to Rule 23(c)(1) filed on March 27, 2019. Dkt. 34.

         III. STANDARD OF REVIEW

         Under the Federal Rules of Civil Procedure, a court may certify a class if the class meet the numerosity, commonality, typicality, and adequacy prerequisites of Rule 23(a). Fed.R.Civ.P. 23(a). In addition to meeting these four requirements of Rule 23(a), class actions must fall within one of the three types specified in Rule 23(b). The district court's Rule 23(a) and (b) analysis must be “rigorous.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)). The party seeking certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one of requirements of Rule 23(b) have been met. Id.

         Courts are required to determine whether to certify the action as a class action at “an early practicable time.” Fed.R.Civ.P. 23(c)(1). District courts have “broad discretion” to control the class certification process and to determine whether discovery will be permitted. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009). A party seeking class certification is “not always entitled to discovery on the class certification issue, ” but in some cases “the propriety of a class action cannot be determined . . . without discovery.” Id. The “better and more advisable practice” for a district court is to provide litigants “an opportunity to present evidence regarding whether a class action is maintainable.” Id. “Yet where the plaintiffs fail to make even a prima facie showing of Rule 23's prerequisites . . . the burden is on the plaintiff to demonstrate that discovery measures are likely to produce persuasive information substantiating the class action allegations.” Doninger, 564 F.2d at 1313. In those circumstances, class certification may be properly denied without discovery. Id.

         IV. DISCUSSION

         Here, neither party contests that Dorfman meets the requirements of Rule 23(a) to be a class representative. Rather, Albertsons predominately challenges Dorfman's prima facie ability to establish that his newly proposed overall class and two sub-classes satisfy Rule 23(b)(3). Dkt. 34-1, at 3 n.1 (Albertson's “motion challenges only specific aspects of Plaintiff's class definition and Plaintiff's ability to satisfy Rule 23(b)(3)'s predominance requirement.”). Dorfman contends he has met his burden and, ...


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