Warnick v. Dish Network, LLC

Filing 262

ORDER that the Order to Show Cause of October 28, 2014 ECF No. 258 is MADE ABSOLUTE. Accordingly, it is ORDERED that Plaintiffs Motion for Class Certification filed August 9, 2013 ECF No. 61 , which was previously denied without prejudice by Or der of June 27, 2014 ECF No. 238 is now DENIED WITH PREJUDICE. Finally, it is ORDERED that Plaintiffs Motion to Enforce Judge Daniels Order to Produce Documents filed October 3, 2014 ECF No. 247 is DENIED, by Judge Wiley Y. Daniel on 11/25/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-01952-WYD-MEH
SETH WARNICK, on behalf of himself and all others similarly situated,
Plaintiff,
v.
DISH NETWORK LLC,
Defendant.

ORDER

I.

INTRODUCTION
THIS MATTER came before the Court on a hearing on October 30, 2014. The

hearing addressed the Order to Show Cause issued on August 28, 2014, as well as
Plaintiff’s Motion to Enforce Judge Daniel’s Order to Produce Documents (“Motion to
Enforce”) filed October 3, 2014. For the reasons discussed below, the Order to Show
Cause is made absolute and the denial without prejudice by Order of June 27, 2014, of
Plaintiff’s Motion for Class Certification filed August 2013, is converted to a denial with
prejudice. Plaintiff’s Motion for Class Certification is thus now denied with prejudice.
Plaintiff’s Motion to Enforce is denied.
II.

ANALYSIS
As noted in the Order to Show Cause, the class ultimately proposed by Plaintiff

Seth Warnick [“Plaintiff” or “Warnick”] in the briefing related to the Motion for Class
Certification was found in my Order of June 27, 2014, not to be administratively feasible,

and thus not ascertainable. Moreover, while Warnick’s Motion to Enforce seeks
discovery related to approximately 27,000 individuals in the TCPA Tracker, Warnick is
not a part of that Tracker as he did not call DISH to complain about the calls made to
him by DISH.1 Accordingly, I held in my Order denying class certification that “a revision
limiting the class to persons identified in the TCPA Tracker would not be appropriate as
Plaintiff would lack standing to sue as a class representative.” (Order of June 27, 2014,
ECF No. 238, at 17.) Plaintiff continues, however, to attempt to pursue a class based
primarily on the 27,000 individuals identified in the TCPA Tracker.
I further noted in the Order to Show Cause that Plaintiff has not pointed to any
documents that would allow him to ascertain a class through an appropriate
methodology other than (1) the TCPA Tracker that he is not a part of and for which he
lacks standing to represent a class and/or (2) the 600+ million records that encompass
all of DISH’s records and for which I found discovery would be overbroad and unduly
burdensome. Moreover, the discovery deadline expired on January 3, 2014 (ECF No.
142), and Plaintiff has not sought leave to obtain discovery outside the discovery period.
Accordingly, I ordered Plaintiff to show cause at the hearing why I should not enter an
immediate order converting the denial without prejudice of the Motion for Class
Certification to a denial with prejudice, and then set the case for trial on Plaintiff
Warnick’s individual claims.

1

As noted by DISH at the hearing, there are actually two sets of documents related to the 27,000
individuals. There is the TCPA Tracker itself and the DISH records of actual customers who are
connected to the accounts identified in the TCPA tracker. The latter records are located in DISH’s
customer account database.

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At the hearing, Plaintiff proposed that he can cure his standing problem by
redefining his class as noncustomers of DISH who complained to DISH, either through
calling DISH (the 27,000 individuals in the TCPA Tracker) or by filing a lawsuit about
robocalls made to them by DISH (consisting of Warnick and seven other individuals who
filed lawsuits against DISH). While Plaintiff did not call DISH and is thus not part of the
TCPA Tracker, he argues he has standing to represent the putative class since he
complained by filing a lawsuit, and is thus similarly situated to the other seven
individuals who sued DISH. With the addition of those seven individuals, Warnick
asserts he would then “part of the class” as required for a class representative. See
Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S. Ct. 2541, 2550 (2011).
I find, however, through the “rigorous analysis” required as to whether Plaintiff
can satisfy Rule 23's requirements, Dukes, 131 S. Ct. at 2551, that Plaintiff’s class
definition is still inadequate as it is not ascertainable. Additionally, I find that Plaintiff
cannot show that a class action is the superior method for resolving this litigation.
I first address that portion of the putative class that Plaintiff asserts he is a part
of—the seven individuals who complained about DISH’s robocalls through filing a
lawsuit. Six of those individual’s cases have, however, been dismissed. See Stephanie
Fini v. DISH, Case No. 12-690 (M.D. Fla.) (settled and dismissed with prejudice);
Jaquita Lyons v. DISH, Case No. 13-cv-00192 (D. Colo.) (same); Wade Ruch v. DISH,
Case No. 13-466 (D. Or.) (same); Iniguez/Neuls v. DISH, Case No. 13-1181 (D. Colo.)
(Case No. 12-2354 from E.D. Cal. was transferred to this Court after one named plaintiff
was dismissed with prejudice; the remaining three plaintiffs in the transferred action
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subsequently settled with DISH and the case was dismissed with prejudice); Moore v.
DISH, Case No. 13-00036 (N.D.W.V.) (summary judgment entered October 15, 2014). I
find that the plaintiffs in those concluded TCPA cases could not and should not be part
of any class Warnick could hope to certify. See Aspacher v. Kretz, No. 94-6741, 1998
WL 901683 (N.D. Ill. Dec. 19, 1998) (denying motion for leave to file amended
complaint bringing previously dismissed plaintiffs back into case as dismissals with
prejudice are adjudications on the merits).
As to the only other remaining individual who sued DISH, Mr. Maraan, his case
was set for trial on November 18, 2014. (Benjamin Maraan v. DISH, Case No. 13-436
(S.D. Ohio), ECF No. 16, Scheduling Order.) I agree with DISH that Warnick, who
seeks to certify a class under Fed. R. Civ. P. 23(b)(3), has not and cannot show that his
representation of Mr. Maraan as a putative class member would meet the superiority
requirement of that rule. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614
(1997) (under Rule 23(b)(3), a plaintiff must show that class resolution is “‘superior to
other available methods for the fair and efficient adjudication of the controversy’”). In
making a determination as to superiority, I “‘‘consider the interest of individual members
of the class in controlling their own litigations and carrying them on as they see fit.’” Id.
at 616 (quoting Advisory Comm. Notes, 28 U.S.C.App., p. 698). Mr. Maraan clearly
demonstrated his interest and desire to bring and control his own case and,
presumably, it has already gone to trial.
Even if Mr. Maraan’s case has not yet gone to trial, combining his case with
Warnick’s case would merely cause unnecessary delay in resolution of Mr. Maraan’s
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claims that are at a much more advanced stage than Warnick’s. Further, Warnick has
not demonstrated that he is in a better position to take on those claims. Thus, I find that
a class action with Mr. Maraan in the class as the sole individual, other than Plaintiff,
who complained about DISH’s robocalls through filing suit would not be the “superior”
method for the fair and efficient adjudication of the controversy. See Mitchell v. Texas
Gulf Sulphur Co., 446 F.2d 90, 107 (10th Cir. 1971) (denying certification motion where
other litigation was far advanced).
Additionally, Mr. Maraan seeks treble damages for DISH’s allegedly “willful”
violation of the TCPA, a claim Warnick cannot assert here as summary judgment was
granted as to this claim. Plaintiff thus cannot show that his claims are typical of the
claims of that class member. Fed. R. Civ. P. 23(a)(3); see also Gen. Tel. Co. of
Southwest v. Falcon, 457 U.S. 147, 159 (1982) (where proof of the named plaintiff's
claim will not resolve the class claims, typicality is lacking).
Accordingly, the seven individuals who filed lawsuits to complain about DISH’s
robocalls are not properly part of a class that Warnick can represent. This leaves only
the individuals in the TCPA Tracker for which I have already ruled Warnick lacks
standing to represent. There is thus no viable class.
Plaintiff argues, however, that he has addressed concerns about the TCPA
Tracker class being overbroad and/or unascertainable through the class definition he
proposed in his now withdrawn Amended Motion for Class Certification and which he
represented at the show cause hearing would be the class definition he intends to go
forward with. That definition excludes customers of DISH, family and household
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members of the DISH customer whose account the call concerned, and persons who
provided prior express consent. See Am. Mot. for Class Certification at 1. He asserts
that the only records that need to be reviewed relevant to this class definition are the
records/data for the individuals whose telephone numbers are in the TCPA Tracker, and
that his experts can ascertain the class members from this data through the matching
methodology they described at the hearing in March 2014 on Plaintiff’s Motion for Class
Certification.
I find that, even with the narrowed definition, Plaintiff’s class definition is still not
administratively feasible, and thus not ascertainable, and is overbroad. First, as noted
in my June 27, 2014 Order, DISH has provided evidence that it only calls numbers
provided by customers or persons associated with those customers and that those
persons consented to DISH calling the numbers they designated. Thus, by definition,
the vast majority of the 27,000 individuals in the TCPA Tracker and related customer
database could not be “class members” under Plaintiff’s new definition. (See Picchione
Aff., ¶¶ 4-11, ECF No. 83.) While Plaintiff hopes to represent a class of “anomalies”
—that is, persons that DISH called by mistake when attempting to reach a DISH
customer, I previously found, and reiterate now, that Plaintiff’s proposed “matching”
would not eliminate consenting persons from Warnick’s proposed class because “noncustomers” do not necessarily equal “non-consenting parties”. (See order denying class
certification.)
As noted in the Order on Summary Judgment, the TCPA Tracker reflects
numbers that someone has asked DISH to removed as to future calls; it does not record
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or investigate how a number was originally added to a customer’s account or otherwise
determine issues of consent. DISH showed that there are many different scenarios in
which the numbers provided to it may have been associated with someone other than
the named account holder on DISH records.
While Plaintiff has recognized this through now seeking to exclude household or
family members from the class definition, this exclusion does not address all the
possible scenarios whereby people could have provided their number to DISH and
consent to call them in connection with the account, e.g., roommates or a friend of the
named account holder. Plaintiff has not been able to identify those people and how
they are going to be excluded from the class. This would require individualized fact
inquiries, as these individuals can not be ascertained by reference to objective criteria.
See Carrera, 727 F.3d at 307–08 (“Administrative feasibility means that identifying class
members is a manageable process that does not require much, if any, individual factual
inquiry’”) (quotation omitted). Further, Plaintiff’s expert Robert Biggerstaff admitted the
methodology he would use to identify class members from the TCPA Tracker would
produce many false positives, such as a husband and wife with different last names and
different mailing or billing addresses. Again, identifying such people would require
individualized inquiries.
Based upon the foregoing, I find that Plaintiff has not shown why I should not
convert the denial without prejudice of the Motion for Class Certification to a denial with
prejudice. Accordingly, the Order to Show Cause is made absolute, and Plaintiff’s
Motion for Class Certification is now denied with prejudice.
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B.

Plaintiff’s Motion to Enforce

The Motion to Enforce asks me to enforce an oral order at the hearing on
Plaintiff’s class certification motion that DISH produce the unredacted TCPA Tracker
and corresponding account data. This motion is denied. When that oral order was
made, I had provisionally granted Plaintiff’s class certification motion subject to
approving an order on the motion. However, after receiving a further modification to the
class definition by Plaintiff and further briefing on the class certification issue, I
ultimately denied Plaintiff’s class certification motion. I found in the June 27, 2014
Order, and continue to find, that Plaintiff does not have standing to represent those
individuals identified in the TCPA Tracker and related data and has not identified an
ascertainable class. Accordingly, production of those documents is not appropriate.
See Shushan v. Univ. of Colo., 132 F.R.D. 263, 268 (D. Colo. 1990) (denying motion for
an order to discover the identity of potential class members where no showing by
plaintiff that "there exists a definable, manageable class and that they are proper
representatives of the class."); Ketch, Inc. v. Heubel Material Handling, Inc., No. 11-12,
2011 U.S. Dist. LEXIS 111300, at *5 (W.D. Okla. Sept. 28, 2011) (denying motion to
compel list of all faxes sent by Defendant; "the Court finds that until a class is certified,
there is no need for the production of a fax list to identify members of the class.").
III.

CONCLUSION
Based upon the foregoing, it is
ORDERED that the Order to Show Cause of October 28, 2014 (ECF No. 258) is

MADE ABSOLUTE. Accordingly, it is
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ORDERED that Plaintiff’s Motion for Class Certification filed August 9, 2013 (ECF
No. 61), which was previously denied without prejudice by Order of June 27, 2014 (ECF
No. 238) is now DENIED WITH PREJUDICE. Finally, it is
ORDERED that Plaintiff’s Motion to Enforce Judge Daniel’s Order to Produce
Documents filed October 3, 2014 (ECF No. 247) is DENIED.
Dated: November 25, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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