Presswood, D.C., P.C. v. American HomePatient, Inc.
Filing
104
MEMORANDUM AND ORDER re: 85 MOTION to Certify Class filed by Plaintiff Alan Presswood, D.C., P.C.: IT IS HEREBY ORDERED that plaintiff's motion for class certification [#85] is DENIED. IT IS FURTHER ORDERED that the parties shall meet and confer and provide the Court, by September 10, 2021, with a written schedule of the steps necessary to bring this case to resolution. (Response to Court due by 9/10/2021.) Signed by District Judge Stephen N. Limbaugh, Jr on 08/19/2021. (CMH)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALAN PRESSWOOD, D.C, P.C,
individually and on behalf of all other
Similarly situated persons,
Plaintiff,
v.
AMERICAN HOMEPATIENT, INC.,
and JOHN DOES 1-10
Defendants.
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Case No. 4:17-cv-1977-SNLJ
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff’s motion to reopen discovery
[#92]. This matter’s “unusually long history” has previously been described by this
Court. See Alan Presswood, D.C., P.C. v. American Homepatient, Inc., 2019 WL
1923017 (E.D. Mo. Apr. 30, 2019). Plaintiff claims that defendant violated the
Telephone Consumer Protection Act (“TCPA”) by sending unsolicited facsimile
messages to putative class members.
Plaintiff moved for class certification on January 4, 2021. The briefing on the
motion has been protracted as plaintiff continued its search for certain fax logs relevant to
the case. The matter has now been fully briefed, however, and the Court will deny class
certification.
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I.
Legal Standard
“The class action is an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only. To come within the exception, a party
seeking to maintain a class action must affirmatively demonstrate his compliance with
[Federal Rule of Civil Procedure] 23.” Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432
(2013) (citations omitted). First, however, the class “must be adequately defined and
clearly ascertainable.” Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992,
996 (8th Cir. 2016) (internal quotation omitted).
The Rule 23 inquiry then has two parts. First, Rule 23(a) establishes four
prerequisites for class certification: (1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law and fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will fairly and adequately protect
the interests of the class. Fed. R. Civ. P. 23(a). Second, a plaintiff seeking to maintain a
class action must also satisfy at least one provision of Rule 23(b). Comcast, 133 S.Ct. at
1432. Here, plaintiff relies on Rule 23(b)(3), which requires that questions of law or fact
common among class members must predominate over questions affecting only
individual members, and a class action must be superior to other available methods for
fairly and efficiently adjudicating the controversy. The burden is on the plaintiff. See
Coleman v. Watt, 40 F.3d 25, 258 (8th Cir. 1994).
“The preliminary inquiry of the class certification stage may require the court to
resolve disputes going to the factual setting of the case, and such disputes may overlap
the merits of the case.” Luiken v. Domino's Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013)
(internal quotation marks and citation omitted). “[C]ertification is proper only if the trial
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court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been
satisfied.” Comcast, 133 S.Ct. at 1432 (internal quotation marks and citation omitted).
II.
Discussion
Before looking at the class certification prerequisites, a brief summary of this case
and its procedural history is necessary. Defendant provides certain in-home medical
equipment, such as oxygen, nebulizers, and hospital beds. Healthcare providers provide
prescriptions (known as “referrals”) for these products for their patients. Defendant
became a “preferred provider” of medical equipment for Medicare recipients within a
certain geographical region in June 2013. Defendant created a one-page fax informing
health care providers, in the relevant geographical areas, of its section by Medicare as a
preferred provider. Over the course of two weeks in June 2013, defendant used its inhouse RightFax faxing software to attempt to send the fax to a “Target List” of doctors
and healthcare providers.
Plaintiff is a chiropractic practice that prescribed medical equipment to its patients.
Plaintiff allegedly received one or more of the subject faxes in June 2013.
Before plaintiff filed its lawsuit, though, Radha Geismann M.D., P.C., represented
by the same counsel as plaintiff here, filed suit against defendant related to its receipt of
the subject fax. Geismann filed suit on August 4, 2014, almost fourteen months after
receiving the fax. As part of discovery in that case, defendant searched its fax server,
electronic databases, and the “SQL” servers used by RightFax for the transmission logs
relevant to Geismann’s complaint. Defendant could not locate any fax transmission logs
for the period in question because, defendant explained, it did not retain fax logs as a
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routine part of its business practice, and the fax logs from June 2013 were likely
automatically overwritten, or “purged,” well before Geismann filed suit.
Just before the hearing on Geismann’s motion for class certification, Geismann
dismissed its lawsuit. Approximately one week prior, on June 22, 2017—four years after
receiving the Medicare fax—plaintiff Presswood initiated this lawsuit in Missouri State
Court.
The parties have since been engaged in contentious discovery. This Court allowed
plaintiff repeated discovery extensions in the name of uncovering the RightFax data
plaintiff sought. In 2019, this Court, over defendant’s objection, ordered a third-party
inspection of 26 backup tapes from June 2013 and then of additional backup tapes from
September 2013 and December 2013. [#73 at 4-5.] Nothing came of those searches.
The parties had already collectively served four subpoenas on AT&T, defendant’s
telecommunications provider for the relevant outgoing fax transmissions, for relevant
documents, to no avail. Then, plaintiff discovered the identity of another of defendant’s
telecommunications providers, MetTel, from whom plaintiff wanted to subpoena fax
transmission logs. In line with defendant’s objection, this Court observed that it “is
perhaps likely that MetTel will not have any responsible documents to plaintiff’s
proposed subpoena.” [#99 at 3.] Regardless, this Court allowed the reopening of
discovery for that subpoena in June 2021 because it appeared to be plaintiff’s last chance
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to find evidence regarding whether defendant’s faxes were actually received by the
recipients. 1 Again, no relevant records were discovered.
The analysis of whether class certification is appropriate in this case boils down to
just a few issues. The parties do not seem to contest that approximately 14,000 fax
numbers were on defendant’s “Target list,” that is, the list of provider fax numbers to
which defendant sent its fax. What’s missing are the data confirming which fax numbers
actually received the Medicare fax at issue. Numerosity, then, is certainly present, but
commonality, typicality, and predominance are called into question by the absence of
the fax logs.
In the context of TCPA class actions, “each recipient must prove that his fax
machine or computer received the fax,” as only the persons to whom faxes were
“successfully sent” suffer a discrete injury. Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682,
684, 688 (7th Cir. 2013). In the Eighth Circuit, only the person or entity that successfully
receives a fax has a cause of action under the TCPA. Sandusky Wellness Ctr., LLC v.
Medtox Sci., Inc., 821 F.3d 992, 997 (8th Cir. 2016) (“Medtox Scientific”). Here,
defendant maintains that individual questions predominate over common questions
because there is no evidence of any fax transmission logs showing which Medicare
Faxes were successfully sent. Defendant points out that, in fact, evidence suggests
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This Court noted in the June 2021 order that “Plaintiff also points out that, to the extent AT&T
actually was defendant’s service provider, the defendant was unable to provide any account
numbers with AT&T to assist with the investigation.” [#99 at 3.] Defendant states in its
Response Memorandum in opposition to class certification that defendant has in fact repeatedly
identified the AT&T account numbers associated with the fax numbers at issue, both in this
action and in Geismann. This Court regrets the error, and plaintiff is admonished not to mislead
the Court.
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that approximately 60% of the Medicare Faxes that defendant attempted to send did not
transmit. Further, without the RightFax data showing the success of the fax attempts,
there is no evidence that will show, on a class-wide basis, which class members were
successfully sent a fax and which were not. As a result, this Court would have to conduct
thousands of mini-trials to determine which class members have a viable claim. See, e.g.,
St. Louis Heart Ctr., Inc. v. Vein Centers for Excellence, Inc., No. 4:12 CV 174 CDP,
2017 WL 2861878, at *4 (E.D. Mo. July 5, 2017).
These circumstances are not without precedent in this Court. In St. Louis Heart
Ctr., Inc., the defendant successfully moved to de-certify a class, arguing that there were
no records available to identify which class members received a fax and which had not.
This Court decertified on the grounds that the class was unascertainable and because the
plaintiff had not made the requisite showing for the predominance and commonality
prongs of Rule 23. Id. at *5. Specifically, St. Louis Heart Center held that, due to the
absence of fax logs, there was no “classwide method for identifying class members[,]”
which resulted “in a lack of cohesiveness” and “caus[ed] individual issues to
predominate.” Id.
Similarly, the Sixth Circuit affirmed the denial of class certification on
predominance and ascertainability grounds due to the absence of fax transmission logs.
Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 473 (6th
Cir. 2017), as corrected on denial of reh'g en banc (Sept. 1, 2017) (hereinafter, “ASD
Specialty”). In ASD Specialty, the plaintiff sought certification of a TCPA fax case
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despite the absence of fax logs showing which class members were successfully sent a
fax. 863 F.3d at 470. The evidence also suggested that 25% of the proposed
class did not receive the faxes in question, but, without the fax logs, there was no way of
knowing which class members fell into this group. Id.
Here, there are no fax logs to serve as common proof of successful sending, and
the evidence demonstrates that nearly 60% of the class did not receive the fax at issue.
Other courts have denied class certification in TCPA lawsuits with similar factual
backdrops. See e.g., Physicians Healthsource, Inc. v. Alma Lasers, Inc., Case No. 12-c4978, 2015 WL 1538497, at *4 (N.D. Ill. Mar. 31, 2015), vacated on other grounds by
2015 WL 7444378 (N.D. Ill. July 27, 2015); City Select Auto Sales, Inc. v. BMW Bank of
N. Am. Inc., No. CV 13-4595 (NHS/JS), 2015 WL 5769951, at *8 (D.N.J. Sept. 29,
2015); Brey Corp. v. LQ Mgmt. LLC, No. CIV. JFM-11-718, 2014 WL 943445, at *1 (D.
Md. Jan. 30, 2014).
Plaintiff relies on a variety of out-of-circuit cases that do not have the benefit of
years of discovery that this case has. For example, although the court in City Select Auto
Sales Inc. v. BMW Bank of N. Am. Inc., 867 F.3d 434, 438 (3d Cir. 2017), reversed a
denial of class certification based on an absence of fax logs, the Third Circuit explained it
was possible that additional evidence could be developed that might satisfy
ascertainability. Id. at 442-43. The Third Circuit did not hold that the fax logs were
unnecessary for class certification; instead, it explained: “[w]e take no position on
whether the level of individualized fact-finding in this case is administratively infeasible
because we are limited by the record before us.” Id. at 442. The court never engaged in
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analysis of whether the Rule 23(b)(3) requirements could be met in the absence of fax
logs. Similarly, in other cases upon which plaintiff relies, defendants did not challenge, or
the courts did not specifically analyze, how the absence of fax logs impacted the
commonality or predominance elements of Rule 23. See CE Design v. Beaty
Constr., No. 07-c-3340, 2009 WL 192481, at *3-4 (N.D. Ill. Jan. 26, 2009) (challenging
numerosity); Sadowski v. Med 1 Online, LLC, No. 07-c-2973, 2008 WL 2224892, at *3
(N.D. Ill. May 27, 2008) (same). With respect to the CE Design case, that court certified
the class on a conditional basis, requiring the plaintiff to come forward with individual
affidavits of enough class members to satisfy numerosity. CE Design, 2009 WL 192481
at *4. Indeed, the CE Design class was later decertified by agreement of the parties. No.
07-cv-3304, at Dkt. 76 (N.D. Ill.).
Plaintiff also argues that the absence of fax logs is not fatal to its class certification
bid because class members can “self-identify”—or come forth by way of affidavit with a
claim form to demonstrate whether they received faxes. Eight years have passed since
the subject faxes were sent. Asking possible recipients to aver whether they had received
a certain fax after so long, as defendant puts it, “strains credulity.” Other courts have
rejected the suggestion that affidavits serve as a sufficient substitute for common
evidence. This Court in St. Louis Heart Center noted that: “reliance on claims forms or
affidavits is especially troublesome because of the nature of the proof required. Whether
someone can actually remember receiving a specific junk fax sent many years earlier
raises credibility issues best determined by a trier of fact after testimony subject to crossexamination. This is an appropriate issue for a trial, but not for a claim form or affidavit.”
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2017 WL 2861878 at *4. The Sixth Circuit also rejected the use of affidavits or claim
forms to allow class members to self-identify, noting that “the reliability of an
individual’s recollection of having received a seven-year-old, single-page fax would be
dubious at best” and that “finding out which [] of these individuals were being untruthful
would require scrutinizing each affidavit and would undoubtedly be a difficult
undertaking.” ASD Specialty, 863 F.3d at 473. As another district court put it, “the
recollection of a putative class member that he, she, or it had received a particular
unsolicited fax [six years earlier] would be somewhat suspect.” Brey Corp., 2014 WL
943445, at *1. This Court is confident that claim forms cannot be relied on as a
substitute for common evidence in the form of fax transmission logs, especially when the
evidence shows that approximately 60% of the faxes failed to send successfully. The use
of claim forms and affidavits would devolve into thousands of mini-trials on the issue of
whether any particular class member received the fax
Plaintiff argues that defendant should not be permitted to defeat class certification
for want of the fax transmission logs because, plaintiff suggests, defendant either
destroyed the logs or refused to search for them adequately. First, as explained in
footnote 1, supra, the Court notes that plaintiff has not always accurately represented the
record in this case. Second, the parties have been engaged in discovery regarding this
particular fax for seven years. Defendant has furnished backup tape after backup tape for
independent review—one hundred backup tapes, jointly selected by the parties, were
searched by an independent third-party vendor over two years. Defendant has furnished
its telecommunications provider relevant to the fax (and apparently providers not relevant
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to the fax), and no further information regarding fax transmission data has been found.
This cannot go on indefinitely. This is not a case where conditional class certification is
appropriate because the fax logs might be found.
Third, that the fax logs haven’t been found is not terribly surprising, and it’s
certainly not scandalous as plaintiff would have the Court believe. Plaintiff did not even
file this lawsuit until four years after it received the fax. And counsel’s first plaintiff—
Geismann, which dismissed its suit on the eve of the class certification hearting—did not
file its lawsuit for over a year after receiving the fax. Defendant maintained and still
maintains that the fax logs had by then been overwritten (and plaintiff points to no law
suggesting that defendant had any obligation to preserve the logs before the suit was
filed). As the Sixth Circuit observed in ASD Specialty, “Perhaps if [plaintiff] had brought
suit earlier, fax logs would have existed, and their absence would not pose an
independent barrier to class certification.” 863 F.3d at 473.
Furthermore, the absence of fax logs is not the only reason to deny certification.
The evidence in this case also demonstrates that class certification is inappropriate
because determining whether any particular class member provided prior express
invitation or permission to receive the fax would require individual inquiries.
Defendant’s intended recipients included (1) existing referrals with which defendant
conducts business on a regular basis, and (2) doctors and healthcare providers in contact
with defendant’s account executives. Approximately two-thirds of entities on the Target
List had been doing business and/or exchanging faxes with defendant before the faxes
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were sent. Even if the fax logs existed, determining which of those thousands of entities
had given permission to receive faxes would require individual inquiries.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for class certification [#85] is
DENIED.
IT IS FURTHER ORDERED that the parties shall meet and confer and provide
the Court, by September 10, 2021, with a written schedule of the steps necessary to bring
this case to resolution.
Dated this 19th day of August, 2021.
STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE
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