Carroll v. SGS North America, Inc.

Filing 199

RULING denying 188 Motion to Strike. Signed by Chief Judge Shelly D. Dick on 2/18/2020. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TAYLOR CARROLL

CIVIL ACTION

VERSUS

16-537-SDD-RLB

SGS NORTH AMERICA, INC.
RULING
This matter is before the Court on the Motion to Strike Plaintiff’s Second Motion for
Class Certification1 filed by Defendant, SGS North America, Inc. (“SGS”). Plaintiff, Taylor
Carroll (“Carroll”), filed an Opposition2 to the motion. For the following reasons, SGS’s
motion will be DENIED.
I.

PROCEDURAL BACKGROUND
In 2016, Carroll filed suit individually and on behalf of similarly situated individuals,

alleging that SGS violated the Telephone Consumer Protection Act (TCPA) when it sent
pre-recorded calls to his cell phone without his consent. On October 11, 2019, Carroll
filed his Motion to Certify Class, which set forth a definition for a “Pre-Recorded Message
Class” as well as a “joint/alternative class” that Carroll called the “Cell Phone Class.”3 On
the same day, Carroll also filed a Motion to Amend Class Definition, which sought the
Court’s leave to amend the class definition in light of the fact that the proposed class set
forth in the Motion to Certify Class differed from the proposed class set forth in the Third
Amended Complaint. Then, also on October 19, 2019, Carroll filed a Motion to Clarify
1

Rec. Doc. No. 188.
Rec. Doc. No. 197.
3
Rec. Doc. No. 119, p. 1.
2

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Class Definition,4 which retracts the changes to the class definition proposed in his prior
Motion to Amend.
Recognizing that there were then three sets of proposed class definitions in play –
1) the definitions from the Third Amended Complaint; 2) the definitions from the Motion
to Certify Class and Motion to Amend; and 3) the definitions set forth in the Motion to
Clarify – this Court ordered Carroll to file a new Motion to Certify Class.5 He did so on
January 6, 2020.6 SGS now urges the Court to strike that Motion, for reasons discussed
below. Despite the pendency of this Motion to Strike, SGS filed its Opposition to the
Motion to Certify Class7 on February 5th, 2020. In the eyes of the Court, SGS filing its
opposition tends to moot the issues raised in the instant motion, but the Court will address
them nevertheless before class certification briefing continues.
II.

LAW AND ANALYSIS
SGS’s Motion to Strike posits that Carroll’s Motion for Class Certification (which he

filed upon order of this Court) should be stricken because it proposes a different definition
than the one previously set forth in the Third Amended Complaint, and that this
amendment runs afoul of Federal Rules of Civil Procedure 15 and 16, which govern the
amendment of pleadings. SGS claims that it is simply
asking the Court to do what other courts have consistently done – hold that
the class definition asserted in the Complaint – here the Governing Class
Definition in the Third Amended Complaint – is controlling absent an
affirmative showing of good cause to amend, including the absence of
undue delay and unfair prejudice to the defendant.8

4

Rec. Doc. No. 147.
Rec. Doc. No. 166.
6
Rec. Doc. No. 180.
7
Rec. Doc. No. 196.
8
Rec. Doc. No. 188-1, p. 2.
5

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After citing three cases where courts did just that, SGS admits in a footnote that “[t]o be
sure, there are cases in which courts have allowed modification of a class definition during
class certification briefing.”9 In the eyes of SGS, however, this Court should not follow
those cases, because Carroll’s proposed amendment to the class definition is “not minor,
will require new discovery, and will result in severe prejudice to SGS.”10
What, exactly, is the nature of the allegedly “severe prejudice”? SGS’s argument
boils down to this: earlier iterations of the class definition were predicated on a particular
method of ascertaining potential class members developed by Carroll’s expert witness,
Anya Verkhovskaya (“Verkhovskya”). In short, Verkhovskaya purported that she could
“ascertain class membership by using a third party database to identify the user
associated with each phone number [in SGS’s call logs].”11 SGS questioned this
methodology during discovery and, in its own view, “has shown that the [methodology],
and Verkhovskaya herself, are entirely unreliable.”12 The Daubert motion regarding
Verkhovskaya is still pending before this Court.
Carroll’s new proposed class definition in his Motion to Certify Class eliminates the
reliance on Verkhovskaya’s metholodogy to identify class members, contending now that
“membership in the [class] can be ascertained from SGS’s own records.”13
Verkhovskaya’s metholodogy is not completely absent from Carroll’s Motion, however;
Carroll notes that her analysis is available to “provide[] additional layers of corroboration,

9

Id. (emphasis added).
Id. at n. 3.
11
Id. at p. 6.
12
Rec. Doc. No. 188-1, p. 5.
13
Rec. Doc. No. 180-1, p. 23.
10

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if the Court deems it necessary.”14 Per SGS, the fact that the new class definition is no
longer reliant on Verkhovskaya’s metholodogy is what gives rise to the “severe prejudice”;
having “expended considerable legal fees and expert expenses to attack [her] approach
to class ascertainment,” SGS complains, “Carroll represents to the Court that [her]
opinions and methodology are superfluous.”15
The Court fails to see how amending the class definition in this way causes severe
prejudice to SGS. If Verkhovskaya’s methodology is as unreliable as SGS contends, the
proposed class definition moving away from reliance on that methodology is arguably
exactly what SGS sought by challenging the reliability of her methodology. Overall,
Carroll’s amendment strikes the Court as relatively minor: instead of having
Verkhovskaya ascertain class members based on cross-referencing SGS’s records with
a database, Carroll now proposes using the records themselves (and offers her analysis
as corroboration). Whether this amendment has a negative effect on the ascertainability
of class members is an issue to be addressed in class certification briefing. Further delay
would not cure the alleged prejudice.
In West v. Nissan N. Am., Inc.,16 one of the cases cited by SGS for the proposition
that the plaintiff is bound to the class definition in the complaint, the class definition in the
complaint was limited to 2004 – 2006 model year Nissan vehicles, and the motion to
certify class expanded the definition to include 2004 – 2008 model years. Obviously, this
had the effect of expanding – doubling – the potential size of the class. Carroll’s decision

14

Rec. Doc. No. 188-1, p. 6.
Id. at p. 7.
16
No. 4:13-CV-4070, 2014 WL 825217 at *1 (W.D. Ark. Mar. 4, 2014).
15

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to rely on SGS’s records instead of an expert analysis of those records seems unlikely to
cause such a drastic change in the potential class. To the extent that SGS has substantive
objections to the ascertainability of the class under that new proposed definition, those
objections are addressed in SGS’s recently-filed Opposition to the Motion to Certify Class.
But Carroll reducing his reliance on the expert witness that SGS, as it complains, spent
time and money to discredit, does not give rise to forward-looking prejudice against SGS.
By SGS’s admission, courts17 have allowed amendment via the class certification motion
where the amendment is not unduly prejudicial. Accordingly, SGS’s Motion to Strike18
shall be DENIED.
III.

CONCLUSION
For the reasons stated above, SGS’s Motion to Strike Plaintiff’s Second Motion for

Class Certification19 is hereby DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on February 18, 2020.

S

CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

17

See, e.g., In re TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 590-91 (N.D. Cal. 2010).
Rec. Doc. No. 188.
19
Rec. Doc. No. 188.
18

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