Backer Law Firm v. Costco Wholesale Corp.

321 F.R.D. 343, 2017 WL 1907764, 2017 U.S. Dist. LEXIS 107981
CourtDistrict Court, W.D. Missouri
DecidedApril 27, 2017
DocketCase No. 15-0327-CV-W-SRB
StatusPublished

This text of 321 F.R.D. 343 (Backer Law Firm v. Costco Wholesale Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Backer Law Firm v. Costco Wholesale Corp., 321 F.R.D. 343, 2017 WL 1907764, 2017 U.S. Dist. LEXIS 107981 (W.D. Mo. 2017).

Opinion

ORDER

STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff Backer Law Firm, LLC’s Motion for Class Certification. (Doc. #93), For the reasons stated below, the motion is granted,

I. Background

Plaintiff The Backer Law Firm, LLC (“Plaintiff Backer”) has filed this action against Defendant Costco Wholesale Corporation (“Defendant Costco”), alleging that Defendant Costco violated the Telephone Consumer Protection Act (“TCPA”, or 47 U.S.C. § 227 et seq.), by sending an unsolicited facsimile advertisement to Plaintiff Backer’s business location in Jackson County, Missouri. The Complaint also asserts related state claims of conversion, violation of the Missouri Computer Tampering Act, negligence, and negligence per se. On May 1, 2015, Defendant Costco removed the action from the Circuit Court of Jackson County, Missouri to this Court on the basis of federal question and supplemental jurisdiction. (Doc, # 1). Since the removal of the case, the parties have engaged in a fair amount of written and oral discovery.

Plaintiff Backer brings this motion to ask the Court for an order determining that its TCPA claim be maintained as a class action, with the proposed Plaintiff class defined as follows:

All persons or entities appearing in the List of Class Members to whom Defendant sent one or more facsimiles promoting its [346]*346products, services, or memberships between April 2, 2011 and April 2, 2015. Excluded from the class are ABC Business Forms, Inc., Defendant and its officers, directors, and employees, Defendant’s counsel, any persons who previously have settled TCPA claims with Defendant, the Court and Court personnel, and counsel for the Plaintiff.
The List of Class Members contains information designated by Defendant as confidential and, therefore, is being provided to the Court under seal.

(Motion for Class Certification, Doc. # 93, p. 1).

II. Legal Standard

Class certification is governed by Federal Rule of Civil Procedure 23. Rule 23 requires that an action satisfy all four prerequisites of Rule 23(a) and at least one of the provisions of Rule 23(b). Comcast Corp. v. Behrend, 569 U.S. 27, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). Pursuant to Rule 23(a), the party seeking certification must demonstrate that the proposed class satisfies the requirements of numerosity, commonality, typicality, and adequate representation, to ensure that any class claims are limited “to those fairly encompassed by the named plaintiffs claims.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (internal quotations and citations omitted). Rule 23(b)(3), under which Defendant Backer seeks certification, requires that the Court find that “questions of law or fact common to class members predominate over any questions affecting only individual members,” and that a class action is the “superior” method of adjudication of the controversy.

Before analyzing whether the requirements set forth in Rule 23 have been met, the Court will address the parties’ arguments relating to what have sometimes been referred to as the “implicit requirements” of the courts’ Rule 23 analysis: ascertainability and standing. With respect to aseertainability, the Eighth Circuit has not “outlined a requirement of ascertainability,” or treated it as a “separate, preliminary requirement.” Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 995-996 (8th Cir. 2016). Rather, in noting that that “[m]ost of the other circuit courts of appeals have recognized that Rule 23 contains an implicit threshold requirement that the members of a proposed class be readily identifiable... an ascertainability requirement,” the Eighth Circuit has determined that the certifying court must find that the class sought to be represented “must be adequately defined and clearly ascertainable” in connection with a court’s Rule 23 analysis. Ibid, (internal quotation marks omitted) (collecting cases). With respect to the issue of standing, the Eighth Circuit has held that the “irreducible constitutional minimum of standing [that] requires a showing of injury in fact to the plaintiff that is fairly traceable to the challenged action of the defendant, and likely to be redressed by a favorable decision” applies to class actions. Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1034 (8th Cir. 2010).

“Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Instead, a plaintiff “must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Ibid, (emphasis in original). The preponderance of the evidence standard applies to evidence proffered to establish the requirements of Rule 23. Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008).

A district court must undertake a “rigorous analysis” to ensure that the requirements of Rule 23 are met. Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011). Although the court’s analysis will frequently entail some overlap with the merits of the underlying claims, “[this] cannot be helped.” Walr-Mart, 564 U.S. at 351, 131 S.Ct. 2541. However, there are limits to a court’s analysis of the merits of a matter at the class certification stage. A court’s inquiry on a motion for class certification is “tentative,” “preliminary,” and “limited.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may [347]*347be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 133 S.Ct. 1184, 1195, 185 L.Ed.2d 308 (2013). With these standards in mind, the Court will analyze the motion for class certification in accordance with the requirements of Rule 23.

III. Discussion

1. Requirements of Standing and Ascertainability Are Satisfied

As a threshold matter, the Court finds that Plaintiff Backer has established that the members of the putative class are ascertainable and have standing to bring these claims.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

General Telephone Co. of Southwest v. Falcon
457 U.S. 147 (Supreme Court, 1982)
Amchem Products, Inc. v. Windsor
521 U.S. 591 (Supreme Court, 1997)
Avritt v. Reliastar Life Insurance
615 F.3d 1023 (Eighth Circuit, 2010)
Wal-Mart Stores, Inc. v. Dukes
131 S. Ct. 2541 (Supreme Court, 2011)
In Re Zurn Pex Plumbing Products Liability
644 F.3d 604 (Eighth Circuit, 2011)
Bennett v. Nucor Corp.
656 F.3d 802 (Eighth Circuit, 2011)
Dianne Castano v. The American Tobacco Company
84 F.3d 734 (Fifth Circuit, 1996)
Comcast Corp. v. Behrend
133 S. Ct. 1426 (Supreme Court, 2013)
Karen S. Little, L.L.C. v. Drury Inns, Inc.
306 S.W.3d 577 (Missouri Court of Appeals, 2010)
Ira Holtzman v. Gregory Turza
728 F.3d 682 (Seventh Circuit, 2013)
Imhoff Investment, L.L.C. v. Alfoccino, Inc.
792 F.3d 627 (Sixth Circuit, 2015)
Spokeo, Inc. v. Robins
578 U.S. 330 (Supreme Court, 2016)
Bradley Van Patten v. Vertical Fitness Group
847 F.3d 1037 (Ninth Circuit, 2017)
Robert McKeage v. TMBC, LLC
847 F.3d 992 (Eighth Circuit, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
321 F.R.D. 343, 2017 WL 1907764, 2017 U.S. Dist. LEXIS 107981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/backer-law-firm-v-costco-wholesale-corp-mowd-2017.