United States District Court, D. Idaho
ROBERT DORFMAN, individually and on behalf of all others similarly situated, Plaintiff,
ALBERTSON'S, LLC, a Delaware corporation, doing business in California as SAV-ON PHARMACY, Defendant.
MEMORANDUM DECISION AND ORDER
C. Nye Chief U.S. District Court Judge
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.
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” statutory exception to TCPA
liability. Dkt. 24, at 10-11.
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.
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
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,
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.
before the Court is Albertsons' Second Motion to Deny
Class Certification Pursuant to Rule 23(c)(1) filed on March
27, 2019. Dkt. 34.
STANDARD OF REVIEW
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.
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.
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, ...