Suarez et al v. Portfolio Recovery Associates, LLC

Filing 35

ORDER denying (22) Motion for Suggestion of Remand in case 3:11-md-02295-JAH-BGS. It is hereby ordered that the Suarez plaintiffs' request for a suggestion of remand or, in the alternative, for designation as a subclass is Denied in its entirety. Signed by Judge John A. Houston on 5/24/2012. Associated Cases: 3:11-md-02295-JAH-BGS, 3:12-cv-00574-JAH-BGS(All non-registered users served via U.S. Mail Service) CC: MDL Panel(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IN RE: PORTFOLIO RECOVERY
ASSOCIATES, LLC, TELEPHONE
CONSUMER PROTECTION ACT
LITIGATION

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Case No. 11md2295 JAH(BGS)
Member cases:
10cv2658 JAH(BGS)
11cv1008 JAH(BGS)
11cv3006 JAH(BGS)
11cv3007 JAH(BGS)
11cv3057 JAH(BGS)
12cv0574 JAH(BGS)
THIS DOCUMENT RELATES TO:
12cv0574 JAH(BGS)
ORDER DENYING THE SUAREZ
PLAINTIFFS’ MOTION FOR
SUGGESTION OF REMAND

INTRODUCTION

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Currently pending before this Court is the motion for a suggestion of remand filed

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by plaintiffs Christine Suarez and Carlos Suarez (“the Suarez plaintiffs”). The motion has

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been fully briefed. After a careful consideration of the pleadings and relevant exhibits

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submitted, and for the reasons set forth below, this Court DENIES the Suarez plaintiffs’

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motion for a suggestion of remand.

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BACKGROUND

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The instant case was transferred to this Court on December 21, 2011 from the

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Judicial Panel on Multidistrict Litigation (“the MDL Panel”). The case consists of five

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consolidated putative class actions and one “tag-along” action, each seeking relief from

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defendant Portfolio Recovery Associates, LLC (“defendant” or “PRA”) based on allegations

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that defendant violated the Telephone Consumer Protection Act (“TCPA”) by calling

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cellular telephone numbers with an automatic telephone dialing system (“ATDS”) without

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prior express consent.

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On April 12, 2012, the Suarez plaintiffs filed their motion for a suggestion of

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remand of their individual putative class action complaint originally filed in the Middle

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District of Florida. Defendant filed an opposition to the motion on May 11, 2012. The

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Suarez plaintiffs filed their reply brief on May 18, 2012.
DISCUSSION

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Legal Standard

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The power to remand a case to the transferor court lies solely with the MDL Panel.

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28 U.S.C. § 1407(a); In re Bridgestone/Firestone, Inc., 128 F.Supp.2d 1196, 1197 (S.D.

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Ind. 2001); see also In re Roberts, 178 F.3d 181, 183 (3d Cir.1999). In determining

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whether to issue a suggestion for remand to the MDL Panel, this Court is guided by the

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standards for remand employed by the MDL Panel. Bridgestone/Firestone, 128 F.Supp.2d

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at 1997. Where, as here, pretrial proceedings have not been concluded, the question of

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whether remand is appropriate is left to the court’s discretion and generally turns on the

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question of whether the case will benefit from further coordinated proceedings as part of

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the MDL. In re Patenaude, 210 F.3d 135, 145 (3d Cir.2000); In re Air Crash Disaster,

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461 F.Supp. 671, 672–73 (Jud.Pan.Mult.Lit.1978). The MDL Panel has discretion to

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remand, for example, when everything that remains to be done is case-specific. Patenaude,

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210 F.3d at 145.

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Analysis

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The Suarez plaintiffs contend their case does not benefit from being included in

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these coordinated proceedings and claim the only things remaining to be done in their case

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is case-specific. Doc. # 22 at 3. The Suarez plaintiffs point out that “[d]efendant’s own

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call logs indicate calls made with an [ATDS] ... [and] that [defendant] obtained

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[p]laintiff’s cellular telephone number through contacts [d]efendant initiated with

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[p]laintiff’s mother.” Id. at 4. Thus, according to the Suarez plaintiff, no issues of

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material fact regarding defendant’s liability remain to be resolved in this case such that it

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is now ripe for a “case-specific” summary judgment motion. Id.

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Defendant, in opposition, contend there are “overarching questions [that] must be

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answered in all actions, including Suarez, such as: whether [defendant] used an ‘automatic

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dialing system’ to call the plaintiffs; whether any such calls were made to cellular telephone

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number without prior consent; whether any purported violations of the TCPA were willful

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and knowing; and whether recovery for the plaintiffs under the TCPA would violate

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[defendant’s] constitutional rights.” Doc. # 24 at 5. Defendant disputes plaintiffs’

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suggestion that further discovery and trial in their case would be limited to case specific

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issues, noting plaintiffs admit the corporate deposition has not yet taken place. Id.

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Defendant claims plaintiffs’ argument that defendant’s call logs are sufficient evidence to

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prove the use of an ATDS is “nonsensical,” pointing out the Suarez plaintiffs’ “referenced,

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but unattached, purported discovery does not establish or even address the technology

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used by PRA to make telephone calls, let alone establish or address the question of

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whether PRA ever used a dialer with the requisite capacity as defined in the TCPA.” Id.

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at 5-6 (citing 47 USC § 227(a)(1); In re Aqua Dots Prods. Liab. Litig., 2011 U.S. Dist.

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LEXIS 84834 *7-8 (N.D. Ill. Aug. 2, 2011)(rejecting plaintiffs’ argument in support of a

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suggestion of remand that”common core-liability discovery is .... complete,” noting that

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plaintiffs “largely ignore” their own claims involving issues relevant to all member cases)).

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Defendant contends that, here, the Suarez plaintiffs ignore their own asserted TCPA claim

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which requires satisfying the burden of proving, among other things, PRA’s utilization of
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an ATDS as defined by the TCPA. Id.

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In addition, defendant points out the MDL Panel, as well as this Court, “found that

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consolidation was warranted and necessary even though summary judgment had been

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briefed” when the issue was presented by plaintiff Bartlett in her objections to transfer and

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subsequent motion seeking a suggestion of remand. Id. at 6.

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Suarez plaintiffs will benefit from further coordinated proceedings as part of the MDL,

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including the avoidance of duplicative discovery, conservation of judicial and party

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resources, and prevention of inconsistent rulings. Id.

Defendant claims the

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Defendant also points out that the Suarez plaintiffs had the opportunity to oppose

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the MDL Panel’s conditional transfer order and did not do so, essentially acquiescing to

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the MDL Panel’s determination that the Suarez case shares common facts with the

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transfer cases and that transfer of the Suarez case “would serve ‘the convenience of the

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parties and witnesses’ and promote ‘the just and efficient conduct of the actions.’” Id. at 7

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(quoting MDL Doc. # 40). Defendant maintains there is no reason to abandon that

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determination, noting such requests are generally denied. Id. (citing In re Ameriquest

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Mortg. Co. Mortg. Lending Practices Litig., 2010 U.S. Dist. LEXIS *4 (N.D. Ill. Apr. 6,

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2010)(finding the plaintiff acquiesced to the MDL Panel’s determination regarding

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common facts because the plaintiff did not challenge the Panel’s initial determination

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despite having the opportunity to do so and found no reason to abandon that judgment)).

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The Suarez plaintiffs, in reply, contend they have demonstrated good cause to

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remand because there is no evidence in the record to contradict the fact that the telephone

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number at issue in their case was a number assigned to a cellular telephone service owned

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by the Suarez plaintiffs and defendant placed calls to that number using an ATDS or

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prerecorded voice. Doc. # 26 at 3. The Suarez plaintiffs claim the issue of whether

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defendant placed such calls with prior express consent is still unproven and is wholly

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dependent on facts common only to the Suarez case. Id. The Suarez plaintiffs contend

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defendant is incorrect in stating the Suarez plaintiffs’ claim is dependent upon proving an

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ATDS was implemented. Id. Even if the case were dependent upon the use of an ATDS,
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11md2295

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the Suarez plaintiffs contend the evidence in the record answers the question affirmatively,

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pointing to defendant’s registration of its ATDS with the State of Texas Public Utility

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Commission (Exhibit B). Id. at 4.

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This Court is not persuaded by the Suarez plaintiffs’ arguments. This Court is

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unconvinced that the evidence presented by the Suarez plaintiffs conclusively demonstrate

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defendant used an ATDS, as defined by the TCPA, when it called the Suarez plaintiffs.

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This Court agrees with defendant that all of the cases transferred to this Court by the

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MDL Panel have common questions of fact that have yet to be answered and finds there

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is more to be resolved in the Suarez case than only case-specific issues. Thus, this Court

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finds the Suarez plaintiffs’ case will benefit from further coordinated proceedings,

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including the corporate deposition the Suarez plaintiffs admit they have yet to take, and

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further finds the inclusion of the Suarez case in these coordinated proceedings will

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preserve judicial and party resources and avoid the chance of inconsistent rulings.

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Therefore, this Court sees no reason to disturb the MDL Panel’s initial determination that

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this case is appropriate for transfer to these coordinated proceedings and, accordingly,

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DENIES the Suarez plaintiffs’ motion for a suggestion of remand.
CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED that the Suarez plaintiffs’

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request for a suggestion of remand or, in the alternative, for designation as a subclass

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[doc. # 22] is DENIED in its entirety.

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DATED:

May 24, 2012

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JOHN A. HOUSTON
United States District Judge

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11md2295