Monteferrante v. Williams-Sonoma

Filing 26

Judge Mark L. Wolf: MEMORANDUM & ORDER entered granting 13 Motion to Strike ; granting 20 Motion for Hearing; (Attachments: # 1 Notice of Scheduling Conference) (Bono, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JUDITH MONTEFERRANTE, on behalf
of herself and all others

similarly situated,
Plaintiff.
C.A. No. 16-10578-MLW
V.

WILLIAMS-SONOMA, INC.,
Defendant.
MEMORANDUM AND ORDER

March 17, 2016

WOLF, D.J.
I.

INTRODUCTION

On April 15, 2013, plaintiff Judith Monteferrante brought
this

class

action

against

defendant

Williams-Sonoma,

Inc.

("Williams-Sonoma"). She seeks to represent a class of consumers

whose zip codes Williams-Sonoma allegedly collected unlawfully and
who subsequently received marketing materials from Williams Sonoma

from April 15, 2009 to the present. Williams-Sonoma moves to strike
the class allegations. It argues that the class definition is
overbroad because it includes individuals whose claims are time-

barred. The court agrees. Accordingly, it is allowing the Motion
to Strike and striking the class allegation without prejudice.
II.

APPLICABLE LAW

A. Motion to Strike under Rule 12

Two Federal Rules of Civil Procedure authorize the court to

strike a class allegation at the pleading stage. First, "[D]istrict

courts

may

Procedure

use

12(f)

their
to

authority

delete

the

under

Federal

complaint's

Rule

class

of

Civil

allegations."

Manning v. Boston Medical Center Corp., 725 F. 3d 34, 59 (1st Cir.

2013)(citing Pilgrim v. Universal Heath Card, LLC, 660 F. 3d 943,
949 (6th Cir. 2011)). In addition. Rule 23(d)(1)(D) authorizes the

court to "require that the

pleadings be amended to eliminate

allegations about representation of absent persons and that the

allegation proceed accordingly."
However,

the

First

Circuit

has

discouraged

courts

from

striking class allegations before discovery:
[C]ourts should exercise caution when striking class action
allegations based solely on the pleadings, for two reasons.
First, while ruling on a motion to strike is committed to the
district court's sound judgment, "such motions are narrow in
scope, disfavored in practice, and not calculated readily to
invoke the court's discretion." This is so because "striking
a portion of a pleading is a drastic remedy and...it is often
sought by the movant simply as a dilatory or harassing
tactic." Second, courts have repeatedly emphasized that
striking class allegations under Rule 12(f) "is even more
disfavored
because
it requires
a
reviewing
court to
preemptively terminate the class aspects of...litigation,
solely on the basis of what is alleged in the complaint, and
before plaintiffs are permitted to complete the discovery to
which they would otherwise be entitled on questions relevant
to
class
certification"...Accordingly,
a
court
should
typically await the development of a factual record before
determining whether the case should move forward on a
representative basis.
Id. (citations omitted). Therefore, the court may only strike a

class allegation if "it is obvious from the pleadings that the

proceeding cannot possibly move forward on a class-wide basis."
See id. at 59-60 (reversing district court's order striking class

allegations where it was "plausible" that employer's allegedly
unlawful practices affected employees on a class-wide basis, "even
[though]

the

court

had

concerns

about

plaintiff's

ability

to

represent such a diverse group of employees").

Nevertheless, "sometimes the issues are plain enough from the

pleadings to determine whether the interests of the absent parties
are fairly encompassed

within the

named plaintiff's claim..."

General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160

(1982). Rule 23(d)(1)(D) "permits courts to 'order deletion of

portions [of] a complaint's class claims once it becomes clear
that the plaintiffs cannot possibly prove the deleted portion of
those claims, at least where the basis for the motion to strike
'
is distinct from the factors the court would consider on a motion

for class certification." Barrett v. Forest Laboratories, Inc., 39

F. Supp. 3d 407, 458 (S.D.N.Y. 2014)(citing 5 Moore's Federal
Practice §23.145 (3d ed. 2007)).

Consistent with this principle, a court may strike class

allegations that plainly encompass individuals whose claims are
barred by jurisdictional or time limitations. See Barrett v. Avco
Financial Servs., 292 B.

R. 1, 11-12 (D.

Mass.

2003)(Ponsor,

D.J.)(allowing motion to strike nation-wide class allegation,
where court had no jurisdiction over out-of-state putative class
members, and ordering

plaintiff to amend

with

narrower class

definition); Barrett, 39 F. Supp. 3d at 458-60 (narrowing scope of

putative class to include only class members whose claims accrued
within applicable limitations period); Shabaz v. Polo Ralph Lauren
Corp., 586 F. Supp. 2d 1205, 1211 (C.D. Gal. 2008)(same).
III. RELEVANT FACTS

Monteferrante

alleges

that

she

used

her

credit

card

to

purchase items at Williams-Sonoma, a retailor with locations in
Massachusetts. During that purchase, a Williams-Sonoma employee

asked for her zip code. Believing that Williams-Sonoma required
the information to complete her purchase, she complied. WilliamsSonoma subsequently used her zip code to identify her home address.
As a result, she began receiving unwanted marketing materials from
the retailor, mailings which continued "long after March 2013."
Compl. at SI6.

Monteferrante alleges that Williams-Sonoma's collection of

zip code information, when it was not required by the credit card
issuer, violates Mass. Gen. Laws Chapter 93, §105(a). That statute
states that:

No person, firm, partnership, corporation or other business
entity that accepts a credit card for a business transaction
shall write, cause to be written or require that a credit
card holder write personal identification information, not

required by the

credit card issuer, on

the

credit card

transaction form[, including]...a credit card holder's
address or telephone number...[except when such] information
is necessary for shipping, delivery or installation of

purchased merchandise or services or for a warranty when such
information is provided voluntarily by a credit card holder.

"Personal

identification

information"

under

§105(a)

includes

a

consumer's zip code, when combined with the consumer's name. See
Tyler v. Michael's Stores, Inc., 464 Mass. 492, 500 (2013). A

violation of §105(a) is "an unfair and deceptive trade practice,
as defined in [Mass. Gen. Laws Chapter 93A, §2]." Mass. Gen. Laws
Chapter 93, §105(d). Monteferrante also alleges unjust enrichment

based

on

Williams-Sonoma's

"economically

valuable"

"appropriation

personal

identity

and

use"

of

information

her

without

compensation for its own profit. Compl. at SI26.
Monteferrante

seeks

to

represent

a

class

of

similarly

situated consumers. In particular, she seeks to represent:
A class of all persons whose zip code was recorded by
Williams-Sonoma in Massachusetts when such persons made a
purchase using a credit card and who subsequently received
marketing materials from Williams-Sonoma from April 15, 2009
to the present.
Compl. at SI15.

On May 16, 2016, Williams-Sonoma moved the strike the class

allegations. See Docket No. 13. Monteferrante opposed the motion.
See Docket No. 18.
IV.

DISCUSSION

Chapter 93A claims are subject to a four-year limitations
period. See Mass. Gen. Laws c. 260, §5A. Monteferrante's unjust

enrichment claims are subject to a three-year limitations period.^
"A limitations

period

begins to run

when

the

cause

of action

accrues—that is, when the plaintiff can file suit and obtain
relief." Quality Cleaning Prods. R.C., Inc. v. S.C.A. Tissue N.
Am., LLC, 794

F. 3d 200, 203 (1st Cir. 2015). Williams-Sonoma

^ The limitations period applicable to a claim of unjust enrichment
depends on whether the "essential nature" of the claim sounds in
tort or contract. See Cambridge Literary Props. Ltd. V. W. Goebel
Porzellanfabrik, G.M.B.H. & Co. K.G., 448 F. Supp. 2d 244, 262-63
(D. Mass. 2006), aff'd, 510 F. 3d 77 (1st Cir. 2007). In
Massachusetts, sale contract-based claims have a four-year statute
of limitations. Mass. Gen. Laws Chapter 106, §2-725, while tortbased claims are actionable for three years. Mass. Gen. Laws
Chapter 260, §2A.
Mass. Gen. Laws Chapter 93, §105(a) was "intended primarily
to address invasion of consumer privacy by merchants..." Tyler,
464 Mass, at 501. Actions based on the invasion of statutorily-

protected
privacy
interests,
or
for
misappropriation
of
confidential information, sound in tort and are governed by the
applicable three-year statute of limitations. See, e.g., Taylor v.
Swartwout, 445 F. Supp. 2d 98, 103 (D. Mass. 2006)(Gorton,
D.J.)(applying three-year limitations period to invasion of
privacy under Mass. Gen. Laws Chapter 214, §1B); Mass. Eye and Ear
Infirmary v. Q.L.T. Phototherapeutics, Inc., 412 F. 3d 215, 238
(1st Cir. 2005)(misappropriation of trade secrets). The harms
Monteferrante
allege
stem
from
Williams-Sonoma's
alleged

exploitation of her private information, not from the breach of
any agreement, express or implied, between herself and WilliamsSonoma. See Cambridge Literary Props., 448 F. Supp. 2d at 262-63

(applying three-year limitations period to copyright co-owner's
claim for share of defendant's profits on sales of copyrighted
work

where

the

"claims

[were]

not

based

on

a

contractual

relationship between the parties, such as a failure to pay
royalties under the terms of an agreement, but instead s[ought] a
division of profits from [defendant's] exploitation of a
copyrighted work..."). Therefore, the three-year limitations
period applies.

argues that when, as here, class members' claims are based on a
violation of Mass. Gen. Laws Chapter 93, §105, the clock begins to
run

when

the

(here, the

retailor

takes

personal

identifying

information

zip codes) from a consumer. Therefore, it argues,

Monteferrante's class definition is overbroad because it covers

any consumer who received marketing materials from Williams-Sonoma
since April 15, 2009, even if Williams-Sonoma took that consumer's

zip

code

outside

the

limitations

period.

In

response,

Monteferrante argues that Williams-Sonoma restarts the clock for

any putative class member each time it mails her a catalogue using
information it obtained in violation of §105 and, therefore, the

class definition covers only timely claims. See Pi's 0pp. at 8-9.
As this court held in Brenner v. Williams-Sonoma, a consumer's

Chapter 93A and unjust enrichment claims based on a merchant's
violation of §105 accrue on the date the consumer "first received

unwanted

marketing

materials

from

[the

defendant]."

2016

WL

5661987, at *1-2 (D. Mass. Sept. 28, 2016)(denying plaintiff leave
to

amend to

plaintiff,

add

his

himself as a

deceased

wife,

party in lieu

because

his

of the

first

original

mailing

was

received in 2004 and, therefore, his claims were time-barred).
Because

Monteferrante's

class

definition

plainly

individuals who received initial mailings more than four

covers
years

before this case was filed,2 and whose claims are, therefore, timebarred, the court finds that it is overbroad on its face,
a.

The Chapter 93A Class Claims

The collection of a plaintiff's zip code in violation of Mass.
Gen. Laws c. 93, §105(a) is an "unfair or deceptive act" under
Mass. Gen. Laws c. 93A, §9 ("Chapter 93A"), but not a cognizable

injury to the consumer. See Tyler, 464 Mass, at 503-04. A Chapter
93 claim does not accrue, and the limitations period does not

begin,

until

"injury

results

from

the

assertedly

unfair

or

deceptive act." Cambridge Plating Co. v. Napco, Inc., 991 F.2d 21,
25

(1st

Cir.

1993)

Black/Fairfield

&

(citing

Ellis,

Int'l

Inc.,

Mobiles

29 Mass.

Corp.

App.

v.

Ct.

Corroon

215,

&

220-21

(1990)). Therefore, a plaintiff may not bring a Chapter 93A claim
based on a merchant's violation of §105(a) until she suffers a

distinct injury resulting from the violation. See id. at 503.

2 The court recognizes that the limitations period for at least
some class members' claims may have been tolled during the pendency
of Brenner v. Williams-Sonoma, C. A. No. 13-10931-MLW, which was
filed on April 15, 2013. See American Pipe & Construction Co. v.
Utah, 414 U.S. 538, 554 (1974) ("[T]he commencement of a class
action suspends the applicable statute of limitations as to all
asserted members of the class who would have been parties had the
suit been permitted to continue as a class action."). Brenner

sought to certify a class of "All persons whose zip code was
recorded by Williams-Sonoma in Massachusetts when such persons
made a purchase using a credit card from April 15, 2009 to the
present." See C.A. No. 13-10931-MLW, Docket No. 1 at SI14. However,
the period for individuals falling outside this class definition
would not have been tolled under that rule.
8

Accordingly, her claim accrues, and the statute of limitations

begins to run, on the date that she suffers such an injury. See
Cambridge Plating, 991 F.2d at 25. The statute of limitations may
be tolled until "the plaintiff discovers, or reasonably should
have discovered, that she may have been injured as a result of the
defendant's conduct." Id. at 25.

"When a merchant acquires personal identification information
in

violation

of §105(a)

and

uses

the

information

for

its

own

business purposes," including "by sending the customer unwanted
marketing materials," "the merchant has caused the consumer an

injury that is distinct from the statutory, violation itself and
cognizable under [Mass. Gen. Laws Chapter 93A]." Tyler, 464 Mass,
at 504. The receipt of unwanted marketing materials is the only

injury alleged in the complaint. Therefore, the limitations period

for any given class member would begin when he or she received a
mailing sent using an unlawfully obtained zip code.

Repeated unwanted mailings do not extend the limitations
period applicable to putative class members because they are not

continuing

violations

violation" doctrine,

of
if

Chapter
a

93A.

defendant

Under

engages

the
in

"continuing

continuous

or

repeated pattern of unlawful acts, each such act "rewinds the
clock," for limitations purposes, as to the others. Mack v. Great
Atlantic & Pacific Tea Co., 871 F. 2d 179, 183 (1st Cir. 1989).

However, in determining whether there is a "continuing violation"

that extends the statute of limitations, "courts must be careful

to

differentiate

between

[the

unlawful]

acts

and

the

ongoing

injuries which are the natural, if bitter, fruit of such acts,"
which do not restart the clock. Gilbert v. City of Cambridge, 932

F. 2d 51, 58 (1st Cir. 1991); see also Asociacion de Suscripcion
Conjunta

del Seguro de

Responsabilidad

Jimenez, 659 F. 3d 42, 51 (1st Cir. 2011)

Obliqatorio

v.

Juarbe-

A defendant's subsequent

act only renews the statute of limitations as to time-barred claims
if that act is itself unlawful. See Centre Medico del Turabo, Inc.

V. Feliciano de Melecio, 406 F. 3d 1, 7 (1st Cir. 2005); Mack, 871
F. 2d at 183.

In Mack, an African-American woman alleged that her employer

discriminated against her when it promoted three more junior white
men instead of her. Id. at 181. The promotions occurred outside

the

applicable limitations period. Id.

at 182. However, the

3 For example, in actions for copyright infringement, the
limitations period begins running when plaintiff knows that the
"initial infringement took place" and continues to run even though
the defendant distributes new infringing copies of the work. See
Luar Music Corp. v. Universal Music Group, Inc., 847 F. Supp. 2d

299, 307-11 (D. P. R. 2012)(citing Cambridge Literary Props. Ltd.
V. W. Goebel Porzellanfabrik, G.M.B.H. & Co. K.G., 510 F. 3d 77,

88 (1st Cir. 2007)). The same principle applies in actions for

misappropriation of trade secrets, which accrue when the plaintiff
should have learned that the defendant was improperly using his

technology. See Epstein v. C.R. Bard, Inc., 460 F. 3d 183, 187-88
(1st Cir. 2006).
10

plaintiff was subsequently demoted to part-time status during a
lay-off that affected only lower-level employees. Id. at 181. She

argued that the demotion, which occurred during the limitations
period, constituted a "continuing violation" because she would not
have been demoted then had she been promoted earlier. Id. at 182.
Rejecting her argument, the court held that the only allegedly

discriminatory act was the out-of-time failure to promote, and the
demotion was, at most, merely a "consequence" of that failure. Id.

at 182. Therefore, it did not constitute a "continuing violation"
sufficient to restart the clock. Id. at 182-83.

Monteferrante's complaint alleges only a single violation of

Chapter 93A—Williams-Sonoma's deceptive collection of zip code
information. Monteferrante cites no authority for the proposition

that each resulting unwanted mailing is, itself, a new violation
of §105(a) or an otherwise "unfair and deceptive" act. Subsequent

mailings, therefore, are not "continuing violations" because they
are not "violations" of Chapter 93A at all. At most, like the

plaintiff's demotion in Mack, they are continuing harms that result
from the same breach of privacy. Such continuing injuries do not
restart the statute of limitations with

respect to the single

violation at issue. See Mack, 871 F. 2d at 183.

Finally, the discovery rule does not extend the limitations
period beyond the date that a class member received his or her
first unwanted mailing. Under that rule, where a plaintiff has
11

suffered an "inherently unknowable" wrong, his claim does not
accrue until he knows or reasonably should know of "two related
facts: (1) that he was harmed; and (2) that his harm was caused by
the defendant's conduct." Harrington v. Costello, 467 Mass. 720,
725 (2014). The plaintiff has the required notice of these two

facts

when

a "reasonable

inquiry

would

have

disclosed" them.

Cambridge Plating, 991 F. 2d at 27 ("Accrual of the plaintiff's
cause of action is tested, therefore, by what a reasonable person
in

her

position

would

have

known

or

on

inquiry

would

have

discovered at the various relevant times."). In Mclntyre v. United

States, the First Circuit described the discovery rule's "inquiry
notice" standard in the context of a claim under the Federal Torts
Claims Act:

The test for whether a plaintiff should have discovered
necessary facts is an objective one. We look first to whether
sufficient facts were available to provoke a reasonable
person in the plaintiff's circumstances to inquire or
investigate further. A claim does not accrue when a person
has a mere hunch, hint, suspicion, or rumor of a claim, but

such suspicions do give rise to a duty to inquire into the
possible existence of a claim in the exercise of due
diligence. Once a duty to inquire is established, the
plaintiff is charged with the knowledge of what he or she
would
have
uncovered
through
a
reasonably
diligent
investigation. The next question is whether the plaintiff, if
armed with the results of that investigation, would know
enough to permit a reasonable person to believe that she had
been injured and that there is a causal connection between
the government and her injury.
367 F.Sd 38, 52 (1st Cir. 2004)(citations omitted).

12

Monteferrante argues that "[a]11 class members' claims are
tolled under the discovery rules because reasonable consumers have

no reason to suspect that their receipt of unwanted marketing
materials

was

caused

by

Williams-Sonoma's

unlawful

use

and

collection of their personal identifying information." Pi's 0pp.
at

9-10.

In

Brenner,

however,

this

court

explained

that

the

discovery rule delays accrual only until the plaintiff "learn[s]
that

[s]he

sustained

defendant's]

appreciable

harm

as

a

result

conduct:" not "until [she] learns that

of
[s]he

[the
was

legally harmed." 2016 WL 5661987, at *2 (citing Harrington, 467

Mass, at 729 (discovery rule did not toll limitations period, where

plaintiff was falsely accused of stalking in 2005, but did not
know false statement was completely fabricated and, therefore,

legally actionable, until 2007)). Accordingly, it found that a
consumer's Chapter 93, §105-based claims accrued when he first
received a marketing mailing from Williams-Sonoma on November 23,
2004.

id.^

As this court found in Brenner, the receipt of Williams-

Sonoma's marketing materials would have supplied a putative class

^ As the court found, Brenner first received marketing materials
on November 23, 2004, and his claims accrued "on that date." Id.
at *1. The

court later stated that Brenner's claims accrued on

"November 23, 2009." Id. at *2. The latter date was an error and
should read "November 23, 2004," consistent with the earlier
statement.

13

member

with

the

facts

sufficient

to

realize

that

she

had

been

harmed (by receiving the marketing materials) by Williams-Sonoma
and

its

possession

of

her

home

address

information.

Monteferrante's class definition, however, encompasses individuals
who

received any mailing

after April 15,

2009, even if they

received their first such mailing before that date. Therefore, the

class allegation, on its face, encompasses individuals who claims
would be barred by Chapter 93A's four-year statute of limitations,
and may be struck.
b. Unjust Enrichment Class Claims

On the same reasoning, Monteferrante's class allegation is
overbroad

with

respect

to

the

unjust

enrichment

claims.

The

equitable doctrine of unjust enrichment entitles a plaintiff to
restitution for any benefit knowingly retained by the defendant at
her expense—for example, profits derived from the defendant's use
of her confidential information—when it would be inequitable for

the defendant to retain that benefit without paying her. See Mass.
Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F. 3d 47,
57 (1st Cir. 2009). Williams-Sonoma is incorrect that a claim for

unjust

enrichment

information

unjustly

in

accrues

violation

enriched

and,

when
of

a

defendant

§105.

therefore,

takes

Williams-Sonoma

class

members'

protected
was

only

claims

only

accrued, when Williams-Sonoma began using their information for

economic gain, for example, by using the information to send
14

mailings or selling it to third parties. See Karp v. Gap, Inc.,
2014

WL

4924229,

at

*2

(D.

Mass.

Sept.

29,

2014)("The

mere

recording of a zip code is insufficient for a claim of unjust
enrichment without separate allegations as to how the merchant
realized economic value.").

It is not obvious, without further factual development, that

class members could feasibly have discovered that their zip codes

were being used for profit until they received a mailing from
Williams-Sonoma. However, as the court found in Brenner, receiving

an initial mailing would alert a reasonable individual of the basis
for his unjust enrichment claim. 2016 WL 5661987, at *2. Because
Monteferrante's

individuals

class

who

definition,

received

that

on

its

first

face,

mailing

encompasses

outside

the

limitations period, it is overbroad.
V.

CONCLUSION

In view of the foregoing, the court is allowing the motion to
strike. The court does not find it obvious, however, that no class
could be certified if Monteferrante limited the class definition

to individuals whose zip code information was taken in violation

of Chapter 93, §105 and who received an initial mailing from
Williams-Sonoma

within

the

limitations

period.

Therefore,

the

court is striking the class allegations without prejudice to a
motion

to

amend

the

complaint

with

a

consistent with this Memorandum and Order.

15

new

class

definition

VI.

ORDER

In view of the foregoing, it is hereby ORDERED that:
1.

The Motion to Strike the class allegations (Docket No.

13) is ALLOWED without prejudice to the filing of an Amended
Compliant by April 20, 2017.
2.

Defendant shall respond to the Amended Complaint within

21 days of service.
3.

Plaintiff's

Motion

to

Set

a

Pretrial

Scheduling

Conference (Docket No. 20) is ALLOWED. A scheduling conference

shall be held on May 4, 2017. The parties shall respond to the
attached Order concerning that conference.

A if n T

7UD(^

UNITED STATES DISTRICT JUD

16