Palm Beach Golf Center-Boca, Inc. v. Sarris

311 F.R.D. 688, 2015 U.S. Dist. LEXIS 167142, 2015 WL 9450510
CourtDistrict Court, S.D. Florida
DecidedAugust 4, 2015
DocketCase No. 12-80178-CIV-WILLIAMS
StatusPublished
Cited by8 cases

This text of 311 F.R.D. 688 (Palm Beach Golf Center-Boca, Inc. v. Sarris) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Palm Beach Golf Center-Boca, Inc. v. Sarris, 311 F.R.D. 688, 2015 U.S. Dist. LEXIS 167142, 2015 WL 9450510 (S.D. Fla. 2015).

Opinion

ORDER GRANTING MOTION FOR CLASS CERTIFICATION AND SETTING STATUS CONFERENCE

KATHLEEN M. WILLIAMS, United States District Judge

THIS MATTER is before the Court on Plaintiffs motion to certify class (DE 20), to which Defendant filed a response in opposition (DE 28), Plaintiff filed a reply (DE 38), and Defendant filed a sur-reply (DE 48). Following an appeal, and given the passage of time, the Court requested that the parties supplement their briefing on the motion, and the parties did so (DE 112,115,166).

I. BACKGROUND

Defendant John G. Sams, D.D.S., P.A, is a Florida dental practice owned by Dr. John G. Sarris. In 2005, Mike Roberts was contacted by Business to Business Solutions (“B2B”), the d/b/a of Carol Abraham1 to send faxes regarding Defendant’s dental practice. B2B offered to send up to 10,000 fax advertisements in exchange for $420. Ultimately, B2B sent a fax containing information regarding Defendant’s dental practice to various persons.

The parties do not dispute that this case has its genesis in previous class action lawsuits filed in other districts involving B2B. The history of those lawsuits and the lawsuits spawned by the actions of Ryan Kelly and Brian Wanca of Anderson & Wanca are well-known to the parties and to numerous courts throughout the country. See Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489 (7th Cir.2013) (summarizing events); CE Design Ltd. v. Cy’s Crabhouse N., Inc., No. 07 C 5456, 2010 WL 3327876 (N.D.Ill. Aug. 23, 2010) (summarizing events). Suffice it to say, in January, 2009, Anderson & Wanca came into possession of a hard drive filled with fax transmission records from Abraham. By January 13, 2009, Plaintiffs’ expert, Robert Bigerstaff, had received and analyzed the data, identifying thousands of alleged fax recipients. Based on the hard drive and Biggerstaffs reports, Anderson & Wanca solicited hundreds of plaintiffs to serve as class representatives in [692]*692more than 130 lawsuits nationwide (Affidavit of Carol Abraham, DE 28-17 ¶ 7, Ex. A). In essence, Anderson & Wanca, came into possession2 of a hard drive full of predicate information for potential class action lawsuits, retained an expert, and then — without having receiving complaints or requests for representation from any purported class members — solicited plaintiffs, many of whom, like the proposed class representative in this class action, had no recollection of receiving the faxes at issue.

After receiving one such solicitation letter, Plaintiff entered into a retainer agreement with Anderson & Wanca and another Illinois law firm, Bock & Hatch LLC, which provided for an attorneys’ fee equal to one-third of any benefit conferred upon the class. (DE 28-21.) On July 9, 2009, three years and seven months after the fax at issue was sent, counsel filed three class action lawsuits alleging violations of the Telephone Consumer Protection Act (“TCPA”) on behalf of Plaintiff in Florida state court, including the present lawsuit. Plaintiff did not move to certify a class until October 10, 2012, more than three years after filing suit, and nearly seven years after the transmission of the fax at issue.

Although Palm Beach Golf Center-Boca, Inc. (“Palm Beach Golf’) is the Plaintiff and proposed class representative, Larry Sugar-man — the owner and operator of Palm Beach Golf — testified that he did not review the complaint before it was filed and was not aware that it was a class action lawsuit. (Deposition of Larry Sugarman (“Sugarman Dep.”) DE 21-5 at 26:2-7, 42:1-10.) Nor did Plaintiff have any personal knowledge of receiving the fax at issue prior to filing suit; Plaintiffs claims are predicated solely upon the Bigerstaff report3 (Sugarman Dep. 28:7-11). The Biggerstaff report indicates that the data contained on the hard drive revealed that there was an error-free transmission of a one-page fax to 7,058 unique fax numbers on December 13 and 14, 2005. (DE 21 at 2; Expert Report of Robert Biggerstaff (“Biggerstaff Report”) DE 21-4 ¶ 17, Exs. 3-6.) The Biggerstaff report indicates that Plaintiff received a successful error-free fax transmission to its fax machine at 561-347-2439 4 on December 13, 2005 (DE 21 at 6; Bigger-staff Report, Ex. 3 at 28). The report also includes a copy of a one-page fax for the Sarris dental practice that was retrieved from the hard drive. (Bigerstaff Report ¶ 12, Ex. 2.)

Plaintiff brought this action on behalf of itself and all others similarly situated against Defendants John G. Sarris, D.D.S., P.A., and John G. Sarris5 asserting two counts: (1) violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (the “TCPA”); and (2) common law conversion.6 Plaintiff, the proposed class representative, is a Florida corporation, which seeks to certify the following class:

All persons who were sent one or more facsimiles on December 13, 2005 or December 14, 2005, from “John G. Sarris, D.M.D., P.A” offering “Family, Cosmetic & Reconstructive Dentistry” and serving as a $50 “Gift Certificate.”

(DE 20).

II. LEGAL STANDARD

Rule 23 of the Federal Rules of Civil Procedure “establishes the legal road-[693]*693map courts must follow when determining whether class certification is appropriate.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1187 (11th Cir.2003). Rule 23 does not set forth a mere pleading standard; the party seeking class certification must affirmatively demonstrate compliance with the rule by demonstrating that “there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (emphasis in original). District courts are invested with significant discretion in deciding whether to certify a class. See Vega v. T-Mobile USA Inc., 564 F.3d 1256, 1264 (11th Cir.2009). While the Court’s certification analysis “may entail some overlap with the merits of the plaintiffs underlying claim, Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S.-, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013) (internal quotations and citations omitted). The merits of the case “may be 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.” Id. at 1195.

The party seeking class certification bears the burden of establishing the propriety of class certification. See Valley Drug, 350 F.3d at 1187. Under Rule 23(a), every putative class must satisfy the prerequisites of numerosity, commonality, typicality and adequacy of representation. Fed. R. Civ. P.

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311 F.R.D. 688, 2015 U.S. Dist. LEXIS 167142, 2015 WL 9450510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palm-beach-golf-center-boca-inc-v-sarris-flsd-2015.