Mattson v. New Penn Financial, LLC

Filing 98

ORDER: The Court ADOPTS IN PART Magistrate Judge You's Findings and Recommendation 85 . Defendant's Motion to Deny Class Certification 74 is GRANTED. Signed on 7/9/2021 by Judge Marco A. Hernandez. (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ERIK MATTSON,

No. 3:18-cv-00990-YY
Plaintiff,

ORDER

v.
NEW PENN FINANCIAL, LLC,
Defendant.
HERNÁNDEZ, District Judge:
Magistrate Judge Youlee Yim You issued a Findings and Recommendation on March 8,
2021, in which she recommends that this Court grant Defendant’s Motion to Deny Class
Certification. F&R, ECF 85. The matter is now before the Court pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b).
Plaintiff filed timely objections to the Magistrate Judge’s Findings & Recommendation.
Pl. Obj., ECF 96. When any party objects to any portion of the Magistrate Judge’s Findings &

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Recommendation, the district court must make a de novo determination of that portion of the
Magistrate Judge’s report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th
Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Judge You concluded that Plaintiff is an inadequate class representative in part because
questions remain concerning whether he has standing to bring a claim under the Telephone
Consumer Protection Act (TCPA). F&R 10–11. Plaintiff objects to the F&R on the ground that it
improperly found that questions remain concerning whether Plaintiff has standing to bring this
claim. Pl. Obj. 7, ECF 96. “[T]he law of Article III standing . . . serves to prevent the judicial
process from being used to usurp the powers of the political branches and confines the federal
courts to a properly judicial role[.]” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as
amended on denial of reh’g, (May 26, 2016) (internal citations and quotations omitted). To have
standing to bring a claim under Article III, a plaintiff “must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision. NEI Contracting & Eng’g, Inc. v. Hanson Aggregates
Pac. Sw., Inc., 926 F.3d 528, 532 (9th Cir. 2019) (quoting Spokeo, Inc., 136 S. Ct. at 1547).
Standing to sue is measured at the time the plaintiff files suit. Davis v. Fed. Election Comm’n,
554 U.S. 724, 732 (2008) (characterizing standing as the “personal interest that must exist at the
commencement of the litigation”).
Plaintiff meets those requirements. Plaintiff personally suffered an injury in fact when he
received an unwanted call from Defendant on what Plaintiff alleges was his residential phone
number after Plaintiff placed it on the national Do Not Call Registry (DNCR). The injury is
fairly traceable to the conduct of Defendant—there is no dispute that Defendant made the calls to

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Plaintiff’s phone when his phone number was on the DNCR.1 Plaintiff’s claim is also likely to be
redressed by a favorable judicial decision because the TCPA creates a right to a remedy. 47
U.S.C. § 227(c)(5). Thus, Plaintiff has standing to bring this case. If Plaintiff has Article III
standing to bring this case, he also has standing to bring a class action based on the same case or
controversy. See Flast v. Cohen, 392 U.S. 83, 99 (1968) (“The fundamental aspect of standing is
that it focuses on the party seeking to get his complaint before a federal court and not on the
issues he wishes to have adjudicated.”).
Whether Plaintiff meets the requirements of Rule 23 is a different question from whether
he has Article III standing. See id. The Court adopts Judge You’s conclusion that Plaintiff cannot
meet the typicality and commonality requirements of Fed. R. Civ. P. 23 because individual
questions concerning whether he is a residential subscriber subject to the TCPA’s protections
will predominate the litigation. See Koos v. First Nat. Bank of Peoria, 496 F.2d 1162, 1164 (7th
Cir. 1974). The Court has carefully considered Plaintiff’s objections and concludes that there is
no basis to modify the remainder of the Findings & Recommendation. The Court has also
reviewed the pertinent portions of the record de novo and finds no error in the Magistrate Judge’s
Findings & Recommendation.
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Defendant, however, alleges that it had consent to call Plaintiff’s phone number so its phone
call did not violate the TCPA.
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CONCLUSION
The Court ADOPTS IN PART Magistrate Judge You’s Findings and Recommendation
[85]. Defendant’s Motion to Deny Class Certification [74] is GRANTED.
IT IS SO ORDERED.

DATED: _______________________.
July 9, 2021

_____________________________
MARCO A. HERNÁNDEZ
United States District Judge

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