Dorfman v. Albertson's, LLC

Filing 42

MEMORANDUM DECISION AND ORDER - Defendants Second Motion to Deny Class Certification Pursuant to Rule 23(C)(1) (Dkt. 34 ) is GRANTED. Signed by Judge David C. Nye. (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT DORFMAN, individually and on
behalf of all others similarly situated,
Case No. 1:18-cv-00094-DCN
Plaintiff,
vs.

MEMORANDUM DECISION AND
ORDER

ALBERTSON’S, LLC, a Delaware
corporation, doing business in California
as SAV-ON PHARMACY,
Defendant.

I. INTRODUCTION
Pending before the Court is Defendant Albertson’s, LLC’s (“Albertsons”) Second
Motion to Deny Class Certification Pursuant to Rule 23(c)(1). Dkt. 34. Having reviewed
the record and briefs, the Court finds that the facts and legal arguments are adequately
presented. Accordingly, in the interest of avoiding further delay, and because the Court
finds that the decisional process would not be significantly aided by oral argument, the
Court will decide the motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B).
For reasons set forth below, the Court GRANTS Albertsons’ Motion.
II. BACKGROUND
On February 27, 2018, Plaintiff Robert Dorfman filed a Class Action Complaint
against Albertsons alleging that its prerecorded artificial voice telephone messages
(“robocalls”) related to prescription pick-up that it made on behalf of “Sav-On Pharmacy”

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(“Sav-on”) violated the Telephone Consumer Protection Act of 1991 (“TCPA”). Dkt. 1.
On May 2, 2018, Albertsons filed a motion to dismiss based on an affirmative statutory
defense. Dkt. 4. The Court denied Albertsons’ motion on October 18, 2018, finding the
calls at issue did not, as a matter of law, fall within the “emergency purposes”1 statutory
exception to TCPA liability. Dkt. 24, at 10–11.
On November 12, 2018, Albertsons filed a Motion to Deny Class Certification
Pursuant to Rule 23(c)(1), challenging Dorfman’s prima facie ability to establish that (1)
Dorfman is a representative of the class whose claims he wishes to litigate as required
under Rule 23(a); (2) common questions of fact predominate over individual issues as
required under Rule 23(b)(3); and (3) class action is the superior method to resolve this
issue as also required under Rule 23(b)(3). Dkt. 27. The Court found that Dorfman was not
a member of the class he sought to represent and no common questions of fact
predominated over individual issues, but it was possible that the class could be manageable
(i.e., a superior method to resolve the issue). Dkt. 31.
In considering Albertsons’ Motion to Deny Class Certification, the Court relied on
Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, (9th Cir. 1977), where the Ninth Circuit
noted that where a party cannot make a prima facie showing of Rule 23’s prerequisites, or

1

The “emergency purposes” category is a statutory exception to liability. 47 U.S.C. § 227(b)(1)(A). FCC
regulations define “emergency purposes” to mean “calls made necessary in any situation affecting the
health and safety of consumers.” 47 C.F.R. 64.1200(f)(4). If the call meets the emergency purposes
exception, consent is essentially irrelevant. ACA International v. Federal Communications Commission,
885 F.3d 687, 714 (D.C. Cir. 2018) (because emergency purpose calls “fall outside the TCPA’s consent
framework,” “[c]onsumers may find themselves wholly unable to stave off calls satisfying the [emergency
purposes] exception”).

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show that discovery measures probably would produce information that substantiated the
class action allegations, class certification may be properly denied without discovery. Id.
at 1313. As Dorfman had failed to make a prima facie showing of Rule 23’s prerequisites
and had not attempted to show that discovery measures were likely to produce persuasive
information substantiating the class action allegations, the Court denied class certification
without discovery. However, because the Court thought it possible that Dorfman could
define its class in a way that complied with Rule 23, it granted Dorfman leave to amend.
Dorfman filed his First Amended Class Action Complaint on March 18, 2019. Dkt.
33. Once again, Dorfman brings this action under the TCPA on behalf of himself and all
others similarly situated who received robocalls from, or on behalf of, Albertsons.
Dorfman alleges that he received a call from, or on behalf of, Albertsons for him to
pick up an “order” that he had never placed at Sav-on. More specifically, he alleges that
he: (1) is not a customer of Sav-on; (2) has never given Sav-on consent to call his wireless
number; (3) received approximately 21 automated phone calls on his cell phone from
Defendant beginning on or around June 12, 2017, regarding a prescription ready for pickup and belonging to an unknown third party; and (4) has asked Defendant to stop calling
him. Id. at ¶ 2. Approximately seven calls were received after July 10, 2017, when Dorfman
had “asked Defendant to stop calling him.” Id.
Pending before the Court is Albertsons’ Second Motion to Deny Class Certification
Pursuant to Rule 23(c)(1) filed on March 27, 2019. Dkt. 34.
III. STANDARD OF REVIEW
Under the Federal Rules of Civil Procedure, a court may certify a class if the class
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meet the numerosity, commonality, typicality, and adequacy prerequisites of Rule 23(a).
Fed. R. Civ. P. 23(a). In addition to meeting these four requirements of Rule 23(a), class
actions must fall within one of the three types specified in Rule 23(b). The district court’s
Rule 23(a) and (b) analysis must be “rigorous.” Comcast Corp. v. Behrend, 569 U.S. 27,
33 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)). The party
seeking certification bears the burden of showing that each of the four requirements of Rule
23(a) and at least one of requirements of Rule 23(b) have been met. Id.
Courts are required to determine whether to certify the action as a class action at “an
early practicable time.” Fed. R. Civ. P. 23(c)(1). District courts have “broad discretion” to
control the class certification process and to determine whether discovery will be permitted.
Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009). A party
seeking class certification is “not always entitled to discovery on the class certification
issue,” but in some cases “the propriety of a class action cannot be determined . . . without
discovery.” Id. The “better and more advisable practice” for a district court is to provide
litigants “an opportunity to present evidence regarding whether a class action is
maintainable.” Id. “Yet where the plaintiffs fail to make even a prima facie showing of
Rule 23’s prerequisites . . . the burden is on the plaintiff to demonstrate that discovery
measures are likely to produce persuasive information substantiating the class action
allegations.” Doninger, 564 F.2d at 1313. In those circumstances, class certification may
be properly denied without discovery. Id.
IV. DISCUSSION
Here, neither party contests that Dorfman meets the requirements of Rule 23(a) to
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be a class representative. Rather, Albertsons predominately challenges Dorfman’s prima
facie ability to establish that his newly proposed overall class and two sub-classes satisfy
Rule 23(b)(3). Dkt. 34-1, at 3 n.1 (Albertson’s “motion challenges only specific aspects of
Plaintiff’s class definition and Plaintiff’s ability to satisfy Rule 23(b)(3)’s predominance
requirement.”). Dorfman contends he has met his burden and, furthermore, that he can
show discovery measures that are likely to produce persuasive information substantiating
the class action allegations. Dkt. 39.
Because Albertsons narrowly focuses its class certification challenge, the Court will
focus its review on whether Dorfman has sufficiently amended his proposed class
definitions to either satisfy Rule 23(b)(3)’s predominance inquiry or meet his burden of
showing that discovery measures are likely to produce persuasive information to
substantiate his class action allegations.
A.

Plaintiff’s Prima Facie Ability to Satisfy Rule 23(b)(3)
The Rule 23(b)(3) predominance inquiry asks trial courts to “make a global

determination of whether common questions prevail over individualized ones.” Torres v.
Mercer Canyons Inc., 835 F.3d 1125, 1134 (9th Cir. 2016). For purposes of this analysis,
“[a]n individual question is one ‘where members of a proposed class will need to present
evidence that varies from member to member,’ while a common question is one where ‘the
same evidence will suffice for each member to make a prima facie showing [or] the issue
is susceptible to generalized, class-wide proof.’” Tyson Foods v. Bouaphakeo, 136 S. Ct.
1036, 1045 (2016) (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50, 196–97
(5th ed. 2012)). The party seeking certification “bears the burden of showing that common
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questions of law or fact predominate.” Zinser v. Accufix Research Inst., Inc., 253 F.3d
1180, 1188 (9th Cir. 2001), opinion amended on denial of reh’g, 273 F.3d 1266 (9th Cir.
2001).
1.

Predominance of Individualized Issues of Common Questions of Fact:
The Overall Class

Dorfman defines the overall class in his First Amended Complaint as:
All natural persons within the United States who, within the four years prior
to the filing of the original Complaint in this matter, Defendant called or
caused to be called, through the use an artificial or prerecorded voice, where
such person was not listed in Defendant’s records as the intended recipient
of the call(s).
Dkt. 33, ¶ 33.2
Albertsons argues that class certification should be denied because no common issue
predominates. Dkt. 34-1, at 6. Specifically, it contends that Dorfman’s class definitions
“suffer from the identical emergency purposes defect that resulted in the denial of his first
putative class.” Id.
On the other hand, Dorfman contends that “whether the general ‘emergency
purposes’ exception can apply notwithstanding the specific FCC exception for prescription
pick-up robocalls (and Defendant’s failure to meet the requirements of the specific
exception) is a question capable of a common answer for the entire main class.” Dkt. 39,
at 9. This question is similar to Dorfman’s articulated common question for his first class

2

None of Dorman’s class definitions explicitly mention that the calls he is concerned about are prescription
calls from Sav-on made by, or on behalf of, Albertsons. However, Dorfman’s own complaint and all of the
briefing related to the class certification make clear that he is focused on prescription robocalls. Thus, the
Court will treat his definition as such, rather than as an overbroad class that relates to all robocalls made
by, or on behalf of, Albertsons from 2014 to 2018.

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definition. See Dkt. 27, at 4 (“Whether such wrong number robocalls fall within the
emergency purpose exception (or any other exception) is a common question for the entire
class.”). To support his argument that a common issue predominates his amended class
definitions, Dorfman again argues that the emergency purposes exception to TCPA liability
does not apply to prescription pick-up robocalls (Dkt. 39, at 8–9), ignoring the Court’s
prior order.
The Court previously ruled that the emergency purposes exception may apply to
prescription pick-up robocalls. Dkt. 24, at 10–11 (“Clearly, some prescription notification
calls fall within the emergency purposes ambit.”). The emergency purposes exception, a
statutory exception to TCPA liability, applies to “calls made necessary in any situation
affecting the health and safety of consumers.” 47 C.F.R. 64.1200(f)(4). If a call falls within
the emergency purposes ambit, then it is outside of TCPA’s consumer consent-based
framework. ACA International v. Federal Communications Commission, 885 F.3d 687,
714 (D.C. Cir. 2018).
As this Court held in two prior orders, the application of the emergency purposes
exception is a fact-specific, individualized question. Dkt. 24 at 11; Dkt. 31, at 9. For
example, some intended recipients of prescription robocalls may be ordering medicine
whose absence would significantly impact their ongoing health. Accordingly, this Court
denied class certification because it would need to make individualized inquiries into the
circumstances and content of wrong number calls that class members received to determine
if the messages fell within a TCPA exception. Dkt. 31, at 9.

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Dorfman has not cured this deficiency in his amended class definition. No common
questions prevail over individualized ones because the Court would need to make
individualized inquiries into the circumstances and content of wrong number calls that
class members received to determine if the messages fell within a TCPA exception.
Additionally, for all non-emergency purposes calls, members of the proposed class would
need to present evidence that they did not consent to the call. Dkt. 24, at 11; Dkt. 31, at 9.
As class members would need to present evidence that varies from member to member, the
issue is not susceptible to generalized, class-wide proof. No common question of fact
predominates Dorfman’s Class definition.
2.

Predominance of Individualized Issues of Common Questions of Fact:
Sub-Class No. 1

Dorfman defines Sub-Class No. 1 as:
All natural persons within the United States who, within the four years prior
to the filing of the original Complaint in this matter, Defendant called or
caused to be called two (2) or more times through the use of an artificial or
prerecorded voice, where such person was not listed in Defendant’s records
as the intended recipient of the calls.
Dkt. 33, ¶ 34 (emphasis added). The definition of Sub-Class No. 1 is identical to the overall
class definition, except for the addition that Albertsons robocalled class members two or
more times. The proposed Sub-Class No. 1 members would have to submit more evidence
than the overall class members, as they would need to provide either testimony or
documentation that they had been called two or more times by Albertsons. Similar to
Dorfman’s overall class definition, no common question of fact predominates Dorfman’s
Sub-Class No. 1 definition.

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3.

Predominance of Individualized Issues of Common Questions of Fact:
Sub-Class No. 2

Dorfman defines Sub-Class No. 2 as:
All natural persons within the United States who, within the four years prior
to the filing of the original Complaint in this matter, Defendant called or
caused to be called through the use of an artificial or prerecorded voice,
where such person was not listed in Defendant’s records as the intended
recipient of the calls, and after the called party requested of Defendant that
no calls be made.
Dkt. 33, ¶ 35 (emphasis added). This definition adds a new clause to the overall class
definition. Thus, Sub-Class No. 2 specifies that the class would only include members that
Albertsons continued to call after proposed class members requested it to stop calling.
As the Court previously held, calls made to individuals who previously notified the
caller that they do not want prescription notifications “cannot be deemed to be either
‘necessary’ or an ‘emergency.’” Id. at 10. However, whether class members had requested
a call to stop—the unique characteristic of Sub-Class No. 2—requires an additional
individualized inquiry into when and how they notified Defendant to stop calling them.
Dkt. 31, at 9. As seen in this case, this inquiry is fact specific: Dorfman provided
information as to when and how he requested Albertsons to stop calling him.
Because the Court would also need to make individualized inquiries into the
circumstances and content of the calls other class members received, the Court agrees with
Defendant that no common question predominates the issue, as the Sub-Class No. 2 is
currently defined, as required under Rule 23(b)(3).
B.

Plaintiff’s Ability to Demonstrate a Need for Discovery
Even if a plaintiff cannot make a prima facie showing that its class definition meets

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Rule 23’s benefits, class certification should only be denied without discovery if the
plaintiff cannot show that discovery measures are likely to produce persuasive information
substantiating the class action allegations. Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304,
1313 (9th Cir. 1977). Ultimately, “[w]hether or not discovery will be permitted in a case
of this nature lies within the sound discretion of the trial court.” Id. at 1312–13 (9th Cir.
1977) (internal citations omitted). In making this determination, “courts look to the need
for discovery, the time required, and the probability that discovery will provide necessary
factual information.” Id.
In Doninger, the Ninth Circuit found that the plaintiffs did not meet this burden
because they rested solely upon the submission of interrogatories and “admitt[ed] that they
made no attempt to obtain depositions from knowledgeable [authorities of the defendant]
located nearby and readily available.” Id. The Ninth Circuit affirmed the district court’s
denial of discovery even though, “the necessary antecedent to the presentation of evidence
is, in most cases, enough discovery to obtain the material, especially when the information
is within the sole possession of the defendant.” The Ninth Circuit reaffirmed its Doninger
holding in Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985). Relying on Doninger, the
Mantolete court held that a district court did not abuse its discretion by denying precertification discovery where the plaintiff merely relied on “two other complaints filed
elsewhere” by similar plaintiffs against the same defendant to demonstrate a likelihood that
discovery would substantiate class allegations. Mantolete, 767 F.2d at 1425.
As Dorfman failed to make a prima facie showing under Rule 23(b)(3), he has the
burden of demonstrating that discovery measures are likely to produce persuasive
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information substantiating the class action allegations. In his response to Albertson’s first
motion to deny class certification, Dorfman did not discuss how potential discovery
measures were likely to produce such information. Rather, he relied on the Ninth Circuit’s
guidance that class certification should generally be determined based on a fully-developed
record after discovery. See generally Dkt. 27. As a result, the Court did not analyze whether
he had met his burden of demonstrating that discovery measures were likely to produce
persuasive information substantiating the class action allegations.
In response to Albertsons’ second motion to dismiss, Dorfman briefly brings up the
potential benefits of discovery. In doing so, he cites to two cases: Brown v. DirectTV, LLC,
330 F.R.D. 260 (C.D. Cal. 2019), and Knapper v. Cox Commc’ns, Inc., 329 F.R.D. 238 (D.
Ariz. 2019).
In Brown, a plaintiff brought a TCPA case against a broadcast satellite service
provider for its debt-collecting calls. The Brown court found that the plaintiff had made a
showing that her class definition met Rule 23’s requirements and certified the class. It also
held that the plaintiff’s methodology for identifying class members were adequate. The
plaintiff had proposed identifying class members by cross-referencing call logs to the
defendant’s receivables management system, provided evidence that defendants likely has
an internal coding scheme recording “wrong numbers” in their call logs, and suggested a
series of other discovery methods. Id. at 273–74. The defendants provided specific
objections as to why the proposed methods would or would not work due to industry
practices, which the district court evaluated and ultimately discarded. Id.

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Similarly, in Knapper, the district court certified the class after finding that the
plaintiff had adequately shown that her class definitions met Rule 23’s requirements. 329
F.R.D. 238. In that case, the plaintiff sued a telecommunications service provider for
making “non-emergency” debt collecting robocalls to wrong numbers. Id. at 240. In its
certification opinion, the Knapper court found that the plaintiff’s proposed discovery
methodology was workable. Id. at 244. The plaintiff’s expert provided in-depth analysis
on how reverse lookups could be utilized to resolve consent or lack of consent on a classwide basis, providing a seven-step process. Id. at 244. The district court reviewed both
parties’ expert opinions on how plaintiffs’ proposed discovery would lead to class-wide
resolution and ultimately determined the plaintiff’s plan would aid class definition.
In contrast, Dorfman has not shown that his class definition meets Rule 23’s
requirements. Further, he provides no methodology, expert testimony, or plans on how he
would use discovery to solve consent, or lack of consent, on a class-wide basis. He states
that the Court should allow him to “review Defendant’s records, understand its automated
call procedures, and identify a methodology for determining class membership based on
common evidence and methods . . . .” Dkt. 39, at 5. After citing to Brown and Knapper,
Dorfman concludes by saying he “asks for nothing more at this stage than to conduct
discovery, including to identify how Defendant’s records can be used to determine class
and subclass membership and to otherwise confirm that this case can proceed on a classwide basis,” so that “the parties can brief the Court on class certification based on a fleshedout record” at the conclusion of discovery. Id. at 6. He proposes no methodology for such
discovery. The Court finds that Dorfman has failed to meet his burden of demonstrating
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that discovery measures are likely to produce persuasive information substantiating the
class action allegations; it will not allow class discovery.
V. ORDER
IT IS HEREBY ORDERED:

1.

Defendant’s Second Motion to Deny Class Certification Pursuant to Rule
23(C)(1) (Dkt. 34) is GRANTED.

DATED: January 7, 2020
_________________________
David C. Nye
Chief U.S. District Court Judge

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