MENDEZ v. AVIS BUDGET GROUP, INC. et al

Filing 323

OPINION AND ORDER; that the Order of the Magistrate Judge, entered on December 1 7, 2018 (ECF No. 287), from which the appeal has been filed (ECF No. 289), is affirmed; that the Clerk of the Court will designate the appeal (ECF No. 289) as terminated.. Signed by Chief Judge Jose L. Linares on 4/3/2019. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSE MENDEZ, individually and on behalf
of all others similarly situated,
Plaintiff,

CIVIL ACTION NO. 11-6537 (JLL)

OPINION & ORDER

v.
AVIS BUDGET GROUP, INC., et aL,
Defendants.

LINARES, Chief District Judge
IT APPEARING THAT:
1.

Before this Court is the defendants’ timely appeal pursuant to Federal Rule

of Civil Procedure 72(a) and Local Civil Rule 72.l(c)(I) from an Order of the Magistrate
Judge, entered on December 17, 201$ (hereinafter, “the December 201$ Order”). (ECF

No. 289.) In the December 201$ Order, the Magistrate Judge granted the plaintiff’s
application pursuant to Federal Rule of Civil Procedure 26(c) for a protective order.
(ECF No. 287.)

2.

This Court has reviewed: (a) the complaint (ECF No. 1); (b) all of the

papers underlying the December 201$ Order (ECF No. 257; ECF No. 260; ECF No. 2601; ECF No. 261); (c) the transcript of the oral argument conducted by the Magistrate

Judge (ECF No. 275); and (d) the papers filed in support of and in opposition to the
instant appeal by the parties. (ECF No. 289 through ECf No. 289-3; ECF No. 292; ECf
No. 292-1; ECF No. 295.) This Court will resolve the appeal upon a review of the papers
and without oral

argument.

See L. Civ. R. 78.1(h). For the following reasons, the

December 2018 Order is affirmed.
3.

This Court presumes that the paiies are familiar \vith the factual context

and the extensive procedural history of this class action, and thus this Court will only
provide a brief overview here. This action has been brought on behalf of those who
allegedly were wrongfully charged for non-discounted tolls and for convenience fees
when they rented vehicles equipped with an electronic system to pay tolls known as ‘e
Toll.”
4.

The complaint was filed on November 7, 2011. (ECF No. 1.) The fact

discovery period in this action closed on June 5, 2014, and the expert discovery period
closed on January 30, 2016. (ECF No. 287 at 1.) On November 17, 2017, this Court
granted the plaintiffs motion to certify the action as a class action for a class period
beginning on April 1,2007 and ending on December 31, 2015 for a nationwide class, a
Flotida subclass, and a New Jersey subclass. (ECF No. 242 through ECF No. 245.)
5.

As is relevant to this appeal, the defendants advised the plaintiff on March

13, 2018 that they intended to serve interrogatories (hereinafter, “the Interrogatories”)
upon between 10.000 and 20,000 members of the class other than the class representative

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with the goal of obtaining perhaps hundreds of responses. (ECF No. 287 at 3; ECf No.
275 at 19; see also ECF No. 260-1 at 4—6 (the Interrogatories).) The Interrogatories
would have inquired as to whether the class members: were aware of e-Toll before they
rented automobiles from the defendants; understood the terms and conditions contained
in the rental confirmations; had their reservations made by another person; objected when
they were billed on their credit cards for using e-Toll; and were reimbursed by an
employer or anyone else. (ECF No. 260-1 at 4—6.) However, on April 1 8, 20 18 the
plaintiff filed an application (hereinafter, “the Application”) for a protective order to
prohibit the defendants from serving the Interrogatories, and argued, among other things,
that such discovery would be inappropriate in this case. (ECF No. 257.)
6.

The Magistrate Judge ultimately granted the Application. In doing so, the

Magistrate Judge found that the proposed discovery being sought by the Interrogatories
was “of dubious relevance,” because the Interrogatories addressed issues that were
reserved for the claims administration phase of this class action, e.g., the entitlement to
damages. (ECF No. 287 at 5.) furthermore. the Magistrate .Judge held that given the
small sample size of responses to the Interrogatories that the defendants expected to
receive, the responses “would be functionally useless for the purported purpose of
addressing class-wide questions,” as even the defendants “acknowledged that they are
seeking anecdotal evidence, rather than anything that might he attributable to the class.”
(IcL)

7.

In addition, the Magistrate Judge held that even though the defendants’

request to serve the Interrogatoties

upon

the absent class members was not motivated by

bad faith, the defendants already had access to much of the information that they were
seeking, as the defendants possessed customer surveys and other materials providing
similar information. (Id. at 6—7.) The Magistrate Judge also notably held:
While the Court appreciates Defendants’ desire to obtain all available
evidence, it would not be suitable to use this admittedly “rare” discovery
device under the circumstances of this case. While Defendants argue that
they require information from absent class members to counter Plaintiffs
efforts to establish liability and damages on a class-wide basis, the same
could be said for essentially every class action.
(Ic!. at 7 (record citations omitted).)
8.

The December 201$ Order did not address a matter that was dispositive,

and thus such an Order could be entered by the Magistrate Judge. See 2$ U.S.C.

§

636(b)(l)(A); see also Raritan Bctykeeper, inc. v. NL Inthis., Inc., No. 09-4117,2015 WL
1472031, at *1,3 (D.N.J. Mar. 31, 2015) (on an appeal from a Magistrate Judge’s
decision, holding that a motion for a protective order addressing certain discovery matters
raises non-dispositive issues that were properly addressed by the Magistrate Judge)
KoninidUke PIiths Elecs. iM V

.

Hunt Control Sys., Inc., No. 11-3684, 2014 WL

5798 109, at ‘2 (D.N.J. Nov. 7, 2014) (on an appeal from a Magistrate Judge’s decision,
holding that a motion for a protective order addressing certain discovery issues “is
squarely within the magistrate judge’s purview”). This Court, in reviewing an order of
the Magistrate Judge in a non-dispositive matter, may modify, vacate, or reverse the

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Order

only

if it was “clearly erroneous or contrary to law.” Cijwllone

i’.

Liggett Gip.,

Inc., 785 F.2d 1108, 1113 (3d Cir. t9$6); see also Jackson v. Chttbb Coip., 45 P. App’x

163, 166 n.7 (3d Cir. 2002) (holding the same).
9.

A finding by the Magistrate Judge is clearly erroneous when although there

is evidence to support it, the reviewing district court is left with the definite and firm
conviction that a mistake has been committed. See il’fai*s v. Strit b/c. 347 F. Supp. 2d
136, 149 (D.N.J. 2004). In addition, a ruling is contrary to law if the Magistrate Judge
has misinterpreted or misapplied the applicable law. See Gitnter v. Ricigewood fneigv
Co;p.. 32 F. Supp. 2d 162, 164 (D.N.J. 199$); see ct/so Kotinelis v. Sherrer. 529 F. Supp.
2d 503, 517 (D.NJ. 2008). “The Court, pursuant to the clearly erroneous standard of
review, will not reverse the Magistrate Judge’s determination even if the Court might
have decided the matter differently.” Bayfiss v. IM1 State Police, No. 11-890,2014 WL
4657304, at ‘10 (D.N.J. Sept. 17, 2014), a/i’d, 622 F. App’x 182 (3d Cir. 2015). As
discussed below, this Court finds that the determinations of the Magistrate Judge in the
December 201$ Order were not clearly erroneous, and that they were not the result of
either a mistake or the misapplication of the applicable law.
10.

A court “may, for good cause, issue an order to protect a party or person

from annoyance, embarrassment, oppression, or undue burden or expense” by
“forbidding the disclosure or discovery” or “forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1).

The burden ofpersuasion rests with the party seeking the protective order to show good

cause by demonstrating a need for that order. See C4poione, 785 F.2d at 1121.
11.

In a class action, although broad discovery requests concerning a class

representative may be the norm, such requests as to absent class members are generally
disfavored or limited by the courts because the efficiencies of a class action could then be
thwarted if such discovery were to be permitted. See in re Lucent Techs. Sec. Litig., No.
00-62 1, 2002 WL 32815233, at *2 (D.NJ. July 16, 2002). Thus, requests for discovery

from absent class members have only been permitted, among other factors, where: (a) the
infonnation being requested is relevant to the common questions in the class action; and
(b) the information being requested is not already in the requesting party’s possession.
See Marsden v. Select Med. Corp., No. 04-4020,2007 WL 9698274, at * 1 n. 1 (E.D. Pa.
July 26, 2007); see also Kline v. First W. Goi’ ‘t Sec., Inc., No. 83-1076, 1996 WL
122717, at *3 (E.D. Pa. Mar. Il, 1996).
12.

It was not clearly erroneous for the Magistrate Judge to find that the

information sought by the defendants in the Interrogatories was of questionable
relevance. It is uncontested that there will be a class of thousands herein, and thus the
anticipated number of responses, i.e., hundreds at the most would do nothing to
adequately clarify the issues in this class action. Additionally, it was not apparent what
the value of the information that the defendants would ultimately garner from the

Interrogatofles might be, as the defendants themselves conceded at oral argument that

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they should “hone the form of the [I]nterrogatories” and that the Interrogatories could be
“redesign[ed].” (ECF No. 275 at 17, 31.) Furthermore, it is apparent that the
interrogatories would encroach upon a process that should be left for the claims
administration phase.
13.

H was also not clearly erroneous for the Magistrate Judge to conclude that

the defendants already possessed the information that they sought through the
Interrogatories, as the defendants had surveys from customers who filed them in closer
temporal proximity to when the members were exposed to c-Toll. (See, e.g., ECF No.
289-2 at 19—20 (examples of customer survey responses that are in the defendants’
possession);

id.

at 27 (defendants’ own chart summarizing customer survey responses).)

Indeed, the defendants should not be permitted to use the Interrogatories as a device to
cull the information that they already possess through their customer surveys.
Furthermore, having already joined in the class, it is unlikely that the absent class
members will Provide responses to the Interrogatories that are favorable to the
defendants.
14.

En conclusion, this Court holds that the Magistrate Judge committed neither

an abuse of discretion nor a clear error of law in making the determinations set forth in
the December 2018 Order. The December 2018 Order will. therefore, be affirmed. For
good cause shown:

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________

IT IS THEREFORE on this

day

ORDERED that

the Order of the Magistrate Judge, entered on December 1 7, 2018 (ECF No. 287), from
which the appeal has been filed (ECf No. 289), is affirmed; and it is further
ORDERED that the Clerk of the Court will designate the appeal (ECF No. 289)

as terminated.

Jf L. LINñES
‘(hief Judge. United States District Court

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