Jennifer Rennick v. NPAS Solutions, LLC

• Court: District Court, C.D. California
• Decided: January 16, 2020
• Docket: 2:19-cv-02495
• Status: Unknown

Opinion

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7 United States District Court 8 Central District of California 9

10 11 JENNIFER RENNICK, Case No. 19-cv-02495-ODW(KSx)

12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION TO STRIKE CLASS 14 ALLEGATIONS [21] NPAS SOLUTIONS, LLC., 15 Defendants. 16 17 I. INTRODUCTION 18 This matter comes before the Court on Defendant NPAS Solutions, LLC’s 19 Motion to Strike Class Allegations (“Motion”). (ECF No. 21.) For the following 20 reasons, the Court DENIES the Motion.1 21 II. BACKGROUND 22 On June 20, 2019, Plaintiff Jennifer Rennick filed her First Amended 23 Complaint (“FAC”) against NPAS Solutions. (FAC, ECF No. 15.) Rennick alleges 24 NPAS, a debt collector, called her multiple times on her cellular phone using an 25 automatic telephone dialing system without her express consent, in violation of the 26 27 1 After carefully considering all papers filed in connection with the Motion, the Court deemed the 28 matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. 1 Telephone Consumer Protection Act (“TCPA”). (FAC ¶¶ 16–40.) Specifically, 2 Rennick alleges that starting around March 2018, and most recently on March 13, 3 2019, and March 26, 2019, she received calls on her cellular phone in which NPAS 4 left prerecorded and artificial voice messages on her voicemail about a debt owed to 5 Havasu Regional Medical Center. (FAC ¶¶ 16–21.) Rennick alleges that she has 6 never visited, has no prior relationship with, and maintains no debt with Havasu 7 Regional Medical Center. (FAC ¶ 17.) Additionally, Rennick alleges that these 8 prerecorded and artificial voice messages were left using an automatic telephone 9 dialing system. (FAC ¶¶ 22–23.) 10 Rennick brings her TCPA claims on behalf of a class defined by the FAC: 11 [A]ll persons within the United States who: (1) received a telephone call 12 from Defendant or its agents; (2) on his or her cellular telephone number; (3) through the use of any automatic telephone dialing systems or 13 artificial or prerecorded voice message as set forth in 47 U.S.C. 14 § 227(b)(1)(A)(3); (4) without prior express consent, (5) within four years prior to the filing of the Complaint through the date of final 15 approval. 16 17 (FAC ¶ 42.) NPAS now moves to strike the class allegations under Rule 12(f). 18 (See Mot.) 19 III. LEGAL STANDARD 20 Under Rule 12(f), the court may strike “any insufficient defense or any 21 redundant, immaterial, impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). 22 “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and 23 money that must arise from litigating spurious issues by dispensing with those issues 24 prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). 25 “Motions to strike are generally regarded with disfavor because of the limited 26 importance of pleading in federal practice, and because they are often used as a 27 delaying tactic.” Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 28 (C.D. Cal. 2003); see also Sapiro v. Encompass Ins., 221 F.R.D. 513, 518 (N.D. Cal. 1 2004) (“Courts have long disfavored Rule 12(f) motions, granting them only when 2 necessary to discourage parties from making completely tendentious or spurious 3 allegations.”). 4 “In ruling on a motion to strike under Rule 12(f), the court must view the 5 pleading in the light most favorable to the nonmoving party.” Cholakyan v. 6 Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D. Cal. 2011). “Thus, 7 ‘before granting such a motion, the court must be satisfied that there are no questions 8 of fact, that the claim or defense is insufficient as a matter of law, and that under no 9 circumstance could it succeed.’” Id. (quoting Tristar Pictures, Inc. v. Del Taco, Inc., 10 No. CV 99-07655-DDP (Ex), 1999 WL 33260839, *1 (C.D. Cal. Aug. 31, 1999)) 11 (alterations omitted). 12 IV. DISCUSSION 13 NPAS argues that the class allegations should be struck because it is clear on 14 the face of the FAC that the class cannot be certified for two reasons. (Mot. 4.) First, 15 NPAS argues the proposed class is an impermissible fail-safe class.2 (Id. at 5–7.) 16 Next, NPAS argues that class certification is impracticable because determining class 17 membership will require highly individualized inquiries regarding the issue of prior 18 express consent. (Id. at 7–18.) In opposition, Rennick raises several arguments, 19 including that NPAS’ Motion to Strike is premature and prejudicial as discovery is not 20 complete, no motion for class certification has been filed, and NPAS has failed to 21 show that Rennick cannot possibly certify a class. (Opp’n to Mot. (“Opp’n”) 7–12, 22 ECF No. 31.) 23 As an initial matter, NPAS has not cited to any relevant binding authority that 24 mandates the action it seeks and there appears to be none. Although some courts have 25 granted motions to strike class allegations under Rule 12(f), “it is in fact rare to do so 26 2 “A fail-safe class is ‘when the class itself is defined in a way that precludes membership unless the 27 liability of the defendant is established.’” Olney v. Job.com, Inc., No. CV 1:12-01724-LJO, 2013 28 WL 5476813, at *11 (E.D. Cal. Sept. 30, 2013) (quoting Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010)). 1 in advance of a motion for class certification.” Cholakyan, 796 F. Supp. 2d at 1245 2 (collecting cases). “Striking class allegations prior to a formal certification motion is 3 generally disfavored due to the lack of a developed factual record.” Pepka v. Kohl’s 4 Dep’t Stores, Inc., No. CV-16-4293-MWF (FFMx), 2016 WL 8919460, at *1 (C.D. 5 Cal. Dec. 21, 2016); see also In re NVIDIA GPU Litig., No. C 08-04312-JW, 2009 6 WL 4020104, at *13 (N.D. Cal. Nov. 19, 2009) (“A determination of the 7 ascertainability and manageability of the putative class in light of the class allegations 8 is best addressed at the class certification stage of the litigation.”). As this Court 9 previously acknowledged, “[c]ourts are hesitant to strike class allegations before the 10 parties have had an opportunity to go through the class certification process.” Portillo 11 v. ICON Health & Fitness, Inc., No. 2:19-cv-01428-ODW (PJWx), 2019 WL 12 6840759, at *6 (C.D. Cal. Dec. 16, 2019). 13 Furthermore, albeit not exclusively, the same arguments that NPAS makes here 14 have been rejected as premature by many of the courts to consider such arguments in 15 the TCPA context. See Pepka, 2016 WL 8919460, at *1–3 (collecting cases on both 16 sides); see also Donaca v. Metro. Life Ins. Co., No. CV 13-05611-MMM (JCx), 2014 17 WL 12597152, at *3 (C.D. Cal. Jan. 22, 2014) (collecting the many cases where 18 courts have denied motions to strike class allegations in TCPA cases). For instance, 19 in Donaca, like here, defendant moved to strike TCPA class allegations based on a 20 claim that the class definition constituted a fail-safe class and required highly 21 individualized inquiries concerning each potential class member’s consent. Id. at *2. 22 The court denied the defendant’s motion, concluding that “[g]iven the early stage of 23 the proceedings, it is premature to determine if this matter should proceed as a class 24 action.” Id. at *4. The court also recognized that it may be correct that “consent or 25 other issues will ultimately require an individualized inquiry, but there is no way to 26 make that determination now.” Id. (quoting Meyer v. Receivables Performance 27 Mgmt., LLC, No. CV 12-2013-RAJ, 2013 WL 1914392, at *2 (W.D. Wash. May 8, 28 2013)). 1 Similarly, in Juarez v. Citibank, N.A., the district court denied the defendant’s 2 motion to strike TCPA class allegations as “fail-safe” classes because the motion was 3 premature. No. CV 16-01984, 2016 WL 4547914, at *5 (N.D. Cal. Sept. 1, 2016); see 4 also Olney, 2013 WL 5476813, at *11 (noting that “in the Ninth Circuit, it is not 5 necessary to deny certification (or in this case strike class allegations) simply because 6 the initially proposed class is a ‘fail safe’ class.”). Furthermore, other courts have also 7 found that “the question of consent is not necessarily a bar to class certification in a 8 TCPA action.” Ahmed v. HSBC Bank USA, Nat’l Ass’n, No. ED CV 15-2057-FMO 9 (SPx), 2017 WL 5765734, at *2 (C.D. Cal. Nov. 6, 2017); see also Blair v. CBE Grp., 10 Inc., 309 F.R.D. 621, 629 (S.D. Cal. 2015) (noting that “courts should not simply 11 accept a party’s argument that consent requires individualized inquiries without 12 evidence demonstrating consent is, in fact, an individualized issue.”). 13 Here, given the early stage of the proceedings, it is premature to say whether 14 the matter should proceed as a class action. Discovery is underway and no motion for 15 class certification has been filed yet. The deadline for Rennick to file her motion for 16 class certification is April 30, 2020. At this stage, even if there are issues with the 17 proposed class, it cannot be said that there are no circumstances in which the proposed 18 class could succeed. See In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. 19 Supp. 2d 609, 615–16 (N.D. Cal. 2007) (declining to rule on defendant’s motion to 20 dismiss or strike class allegations at the pleadings stage because, even though 21 “plaintiffs’ class definitions are suspicious and may in fact be improper, plaintiffs 22 should at least be given the opportunity to make the case for certification based on 23 appropriate discovery.”) Accordingly, NPAS’s Motion to Strike Class Allegations is 24 premature at this early stage, and is more properly decided on a motion for class 25 certification after the parties have had an opportunity to conduct discovery, develop a 26 record, and brief the issues. 27 28 1 Vv. CONCLUSION 2 For the foregoing reasons, the Court DENIES NPAS’s Motion to Strike Class 3 || Allegations. (ECF No. 21.) 4 5 IT IS SO ORDERED. 6 7 January 16, 2020 ss ___ tine OTIS D. WRIGHT, II 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28