Weitzner et al v. Sanofi Pasteur, Inc. et al
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable A. Richard Caputo on 9/6/17. (dw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ARI WEITZNER and ARI WEITZNER,
M.D., P.C., Individually and on Behalf of
All Others Similarly Situated,
CIVIL ACTION NO. 3:11-CV-02198
SANOFI PASTEUR, INC., formerly known
as AVENTIS PASTEUR INC., and
VAXSERVE, INC., formerly known as
VACCESS AMERICA, INC.,
This case concerns a number of facsimiles that were allegedly sent from Defendants
to Plaintiffs in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47
U.S.C. § 227(b)(1)(C).
Presently before the Court is: (1) a Motion to Strike the November 29, 2016
Declaration of Ari Weitzer, M.D (“Third Weitzner Declaration”) filed by Defendants Sanofi
Pasteur, Inc., and Vaxserve, Inc. (collectively “Defendants”); (2) a Motion to Strike Plaintiffs’
Answer to Defendants’ Statement of Facts filed by Defendants; (3) a Motion for Summary
Judgment filed by Defendants; and (4) a Motion for Class Certification filed by Plaintiffs Ari
Weitzner and Ari Weitzner, M.D., P.C. (collectively “Plaintiffs”). Because the Third Weitzner
Declaration is not a sham affidavit and the information it contains is capable of admission
at trial, the Motion to Strike the Third Weitzner Declaration will be denied. The Motion to
Strike Plaintiffs’ Answer to Defendants’ Statement of Facts, however, will be granted in part
as Plaintiffs’ failed to comply with the Local Rules. Defendants’ Motion for Summary
Judgment will be granted in its entirety because American Pipe tolling does not apply to
shield those who initiated a prior action and subsequently assert the same facts and claims
in a new action. Because Defendants’ Motion for Summary Judgment will be granted,
Plaintiffs’ Motion for Class Certification will be moot.
I. Factual Background
A. The Parties
Plaintiff Ari Weitzner, M.D. (“Dr. Weitzner”), is an ophthalmologist who previously
maintained his office in Brooklyn, New York. (Doc. 1, ¶ 6). Dr. Weitzner is currently
employed as an employee of Union Square Eye Care. (Doc. 106, ¶ 8). Previously, Dr.
Weitzner practiced though his own professional corporation, Ari Weitzner, M.D., P.C.. (Doc.
116, ¶ 2).
Ari Weitzner, M.D., P.C. (“P.C.”), is also a Plaintiff in the instant case. (Doc. 1, ¶ 7).
The P.C. is a New York corporation that maintains an “active” status with the New York
Secretary of State. (Doc. 116, Ex. A). While the P.C. remains active on paper, it is
undisputed that the P.C. has closed; it has no assets, and no employees. (Doc. 106, ¶¶ 7,
44-46). Notably, Dr. Weitzner is the sole shareholder of the P.C.. (Doc. 106, ¶ 6).
Defendant Sanofi Pastuer, Inc. ("Sanofi") is a Delaware corporation that
manufactures vaccines. (Doc. 106, ¶ 1). Defendant VaxServe, Inc. ("VaxServe") is a
pharmaceutical distribution company based in Pennsylvania. (Doc. 106, ¶ 2). VaxServe is
a wholly owned subsidiary of Sanofi, with a separate board of directors, business records,
employees, and principal place of business. (Doc 106, ¶ 3).
B. Conduct at Issue:
Beginning on or prior to April 21, 2004, Plaintiffs allege that Defendants were
engaged in a nationwide fax-advertising campaign in order to promote the sale of
commercial products. (Doc 1, ¶¶ 10-11, 17).
On April 21, 2004, Plaintiffs received a fax advertisement (“First Fax”) via the fax
machine at the offices of the P.C. (Doc. 106, at 23, 26). The First Fax offered discounts on
pharmaceutical goods by various manufacturers. (Doc. 87, Ex. A). The fax denoted
"VaxServe" in the upper right-hand corner. (Doc. 87, Ex. A). The fax does not indicate that
it was sent by any party other than VaxServe. (Doc. 87, Ex. A; Doc. 106, at 25). Plaintiffs
claim1 to have received a second fax, also marked with the “VaxServe” stamp, on March 22,
2005 (“Second Fax”). (Doc. 116, at ¶ 7, Ex. C). The parties dispute who received the First
and Second Fax. But, it has been admitted that the fax machine and number that received
both faxes were registered to Dr. Walter Weitzner (Doc. 106, 27-29).
VaxServe admits to sending a number of advertisements during the time alleged by
Plaintiffs; sending such advertisements were part of the company’s business. (Doc. 106,
¶¶ 68-69). The decision regarding what products to include on any given advertisement was
made internally at VaxServe. (Doc. 106, ¶ 68). In fact, none of the manufacturers, including
Defendant Sanofi Pasteur, paid to include their products on the advertisements that were
subsequently faxed. (Doc. 106, ¶ 69).
In the instant matter, neither Plaintiffs nor
Defendants are aware of how VaxServe came to possess the number for the fax machine
in Dr. Weitzner’s office. (Doc. 106, ¶¶ 70-73).
It was Dr. Weitzner's practice to collect unsolicited faxes received at his office and
send them to Attorney Todd Bank, one of Plaintiffs' attorneys, once a week. (Doc. 106, ¶
20). After reviewing the faxes that were passed to him by Dr. Weitzner, Attorney Bank would
While this suit has been ongoing since November 28, 2011, Plaintiffs
have mentioned the existence of the Second Fax for the first time in their
Brief in Opposition to Defendants’ motion for Summary Judgment.
file charges against the company responsible for the unsolicited faxes. (Doc. 106, ¶ 21). 2
C. The Complaint:
On November 26, 2011 Plaintiffs’ filed this putative class action in this Court, alleging
a violation of the TCPA. The class that Plaintiffs allege to represent has shifted a number
of times over the course of this litigation. First, the Complaint defined the putative class as:
[A]ll persons or entities (I) whose fax numbers were licensed, rented, or
purchased by Defendants VaxServe or Sanofi from List Strategies, Inc.; (ii)
whose fax numbers did not exist in Defendants' database on the date of
Defendants' receipt thereof from List Strategies, Inc.; and (iii) who received
an unsolicited fax advertisement transmitted to them on behalf of Defendants
by VisionLab, Inc., Westfax, Inc., or Velofax LLP between February 14, 2005
and the date of the resolution of this lawsuit.
(Doc. 106, ¶ 15). But, in Plaintiffs’ Memorandum in Support of their Motion for Class
Certification, Plaintiffs identify the putative class as:
[A]ll persons or entities to whom VisionLab, Inc., WestFax, Inc. or Velofax
LLP sent facsimiles on behalf of Defendants between February 14, 2005 and
the date of the resolution of this lawsuit for whom Defendants’ only source
of the name of the recipient was a list that had been provided to Defendants
by List Strategies, Inc.
(Doc. 106, ¶ 16). Yet another change in the definition of the class is evident in Dr.
Weitzner’s Declaration in Support of the Motion for Class Certification. There, Plaintiffs
defined the putative class as:
[A]ll persons or entities that, between February 14, 2005, and the date of the
resolution of this lawsuit, received faxes that were sent to them solely as a
result of their fax numbers having been provided to the defendants by a
company called List Strategies, Inc.
(Doc. 106 ¶ 17). Lastly, in the Third Weitzner Declaration and Plaintiffs’
Memorandum in Opposition to Defendants’ Motion to Strike, Plaintiffs make a final
revision and define the class as beginning on February 14, 2001 and ending at the
resolution of this action. (Doc. 152, at 19).
Dr. Weitzner has filed at least 17 similar actions alleging violations of the
TCPA. (Doc. 106, ¶ 33).
II Procedural Background
A. The State Court Action:
Litigation remains pending in the Lackawanna County Court of Common Pleas
involving Dr. Weitzner and the same Defendants for an alleged TCPA violation
stemming from the same April 21, 2004 fax. (Doc. 106, ¶ 32). Dr. Weitzner commenced
the state-court action with the filing of a class action complaint on February 14, 2005,
seeking to represent a class of persons who received unsolicited fax advertisements
from Defendants. The class identified in the state-court action was defined as: "[Dr.
Weitzner] and all other individuals who received an unsolicited fax advertisement from
Defendants between January 2, 2001 and the date of the resolution of this lawsuit."
(Doc. 106, ¶ 31). Notably, the P.C. was neither a named-plaintiff nor identified as a
putative class member in the state-court action. (Doc. 106 ¶¶ 34-36).
On June 27, 2008, Judge Minora3 issued an opinion and order ruling on
Defendants' motion for summary judgment and Dr. Weitzner's motion to amend the
complaint's class definition. (Doc. 106, ¶ 50). The opinion concluded that a class could
include only Pennsylvania-resident fax recipients, rather than the proposed nationwide
class, and held that Dr. Weitzner was not a proper representative plaintiff for class
action purposes. (Doc. 106, ¶ 50). Additionally, Judge Minora found that Dr. Weitzner
presented unique questions of fact that would not be common to the class. (Doc. 106, ¶
52). Judge Minora permitted Dr. Weitzner to proceed on his individual TCPA claim, but
found that a two-year statute of limitations applied to the TCPA claims under
Pennsylvania law, and thus limited Dr. Weitzner's claims to faxes he received within two
years of the date on which the complaint was filed. (Doc. 106, ¶ 50).
Judge Carmen D. Minora served as the presiding judge in Weitzner v.
Sanofi Pasteur, Inc. in the Court of Common Pleas of Lackawanna
On July 25, 2008, Dr. Weitzner filed a notice of appeal from the state court's June
27, 2008 order. On June 3, 2009, the Superior Court concluded that the appeal w as
interlocutory and premature, and therefore quashed the appeal. The Superior Court
noted that no motion for class certification was ever filed or decided by the Court of
B. The Federal Action:
Plaintiffs commenced this action on November 26, 2011. (Doc. 1). On February 6,
2012, Defendants filed their Motion for Abstention, or in the alternative, to Dismiss
Plaintiffs’ Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the
alternative, to Stay Proceedings. (Doc. 20). On May 14, 2012, this Court denied
Defendants’ Motion, specifically noting that it was not clear from the face of the
complaint that the statute of limitations barred the current action, and thus it was not
appropriate to dismiss at that time. (Doc. 37). The Court also declined to address the
applicability, if any, of American Pipe tolling at that time. (Doc. 37, at 15).
On November 12, 2013, Defendants filed their Answers and Affirmative Defenses
to Plaintiffs’ Complaint. (Doc., at 57, 58). Just three days later, on November 15, 2013,
Defendants served Offers of Judgment pursuant to Federal Rule of Civil Procedure 68
upon Plaintiffs; offering for judgment to be entered against Defendants for the maximum
statutory relief available to Plaintiffs. (Doc. 60-1, at 1-2). Defendants filed a Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on December 4, 2013.
(Doc. 59). This Motion was denied by this Court by Order and Opinion dated March 12,
2014. (Doc. 68). The Third Circuit affirmed on April 6, 2016.
Plaintiffs’ filed the instant Motion for Class Certification on June 28, 2016. (Doc.
86). Defendants filed the instant Motion for Summary Judgment on October 17, 2016.
(Doc. 104). Pursuant to the Local Rule of the Middle District of Pennsylvania,
Defendants filed a Statement of Facts detailing the material facts at issue in the
litigation. Plaintiffs filed their Answer to Defendants’ Statement of Facts on November
29, 2016. (Doc. 118). Defendants have also filed two Motions to Strike: Motion to Strike
November 29, 2016 Declaration of Ari Weitzner, M.D. (Doc. 143), and Motion to Strike
Plaintiffs’ Answer to Defendants’ Statement of Facts. (Doc. 145). These Motions were
filed on January 27, 2017. All four Motions pending in this action are ripe for review.
III. Legal Standard
A. Motion to Strike
Defendants move to strike the Third Weitzner Declaration and portions of
Plaintiffs’ Answer to Defendants’ Statement of Facts from the record. Although neither
Rule 56 nor Local Rule 56.1 specifically provide for a motion to strike, courts have held
that a party wishing to challenge statements of fact made by opponents for defect under
either Rule should move to strike, or face waiver of their objection. See, e.g., In Re
Unisys Sav. Plan Litig., 74 F.3d 420, 437 n.12 (3d Cir. 1996) (explaining that the proper
vehicle for an objection to a violation of Rule 56 is a Motion to Strike); Hartshorn v.
Throop Borough, No. 3:07-CV-01333, 2009 W L 761270, at *8-9 (M.D. Pa. Mar. 19,
2009) (striking Plaintiffs’ Statement of Facts from the record for non-compliance with
Local Rule 56.1).
Federal Rule of Civil Procedure 56 notes that affidavits in support or opposition to
a motion for summary judgment shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. F ED.R.CIV.P. 56(c)(4). If
portions of an affidavit do not meet this standard, it is appropriate for the court to
disregard the deficient portions of the record for the purpose of resolving a motion for
summary judgment. See In Re Unisys Sav. Plan Litig., 74 F.3d at 437 n.12.
Further, The United States District Court for the Middle District of Pennsylvania
provides in its Local Rules that:
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be
accompanied by a separate, short and concise statement of the material
facts, in numbered paragraphs, as to which the moving party contends
there is no genuine issue to be tried. The papers opposing a motion for
summary judgment shall include a separate, short and concise statem ent
of the material facts, responding to the numbered paragraphs set forth in
the statement required in the foregoing paragraph, as to which it is
contended that there exists a genuine issue to be tried. Statements of
material facts in support of, or in opposition to, a motion shall include
references to the parts of the record that support the statements. All
material facts set forth in the statement required to be served by the
moving party will be deemed to be admitted unless controverted by the
statement required to be served by the opposing party.
Local Rule 56.1. The purpose of this rule is to "structure a party's summary
judgment legal and factual theory into a format that permits and facilitates the
court's direct and accurate consideration of the motion." Gantt v. Absolute
Machine Tools, Inc ., No. 1:06-CV-1354, 2007 W L 2908254, at *3 (M.D. Pa. Oct.
4, 2007). It is well settled in this jurisdiction that a court “will adopt Defendants’
Statement of Facts, except for those facts clearly disputed by Plaintiff with
adequate record references.” McLaud v. Indus. Res., No. 3:14-CV-00737, 2016
WL 7048987 at *1 n.1 (M.D. Pa. Dec. 5, 2016); see also United States ex rel.
Paranich v. Sorgnard, 286 F. Supp. 2d 445, 448 n.3 (M.D. Pa. 2003); N.J. Mfrs.
Ins. Co. V. Brady, No. 3:15-CV-02236, 2017 W L 264457 at *2 n.1 (M.D. Pa. Jan.
20, 2017). Alternatively, if the party opposing summary judgment fails to comply
with the Local Rule it is within the courts discretion to strike the offending
Statement of Facts. See Hartshorn, 2009 WL 761270, at *8-9.
B. Motion for Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). Summary judgment is appropriate when
“the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J.
State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if proof of its
existence or nonexistence might affect the outcome of the suit under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Where there is no material fact in dispute, the moving party need only
establish that it is entitled to judgment as a matter of law. See Edelman v.
Comm’r of Soc. Sec., 83 F.3d 68, 70 (3d Cir. 1996). W here, however, there is a
disputed issue of material fact, summary judgment is appropriate only if the
factual dispute is not a genuine one. Anderson, 477 U.S. at 247-48. An issue of
material fact is genuine if “a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248. Where there is a material fact in dispute, the
moving party has the initial burden of proving that: (1) there is no genuine issue
of material fact; and (2) the moving party is entitled to judgment as a matter of
law. See Howard Hess Dental Labs., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237,
251 (3d Cir. 2010). The moving party may present its own evidence or, where the
non-moving party has the burden of proof, simply point out to the court that “the
nonmoving party has failed to make a sufficient showing on an essential element
of her case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When considering whether there are genuine issues of material fact, the
court is required to “examine the evidence of record in the light most favorable to
the party opposing summary judgment, and resolve all reasonable inferences in
that party's favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the
moving party has satisfied its initial burden, the burden shifts to the non-moving
party to either present affirmative evidence supporting its version of the material
facts or to refute the moving party's contention that the facts entitle it to judgment
as a matter of law. Anderson, 477 U.S. at 256-57. The Court need not accept
mere conclusory allegations, whether they are made in the complaint or a sworn
statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
In order to prevail on a motion for summary judgment, the non-moving
party must show “specific facts such that a reasonable jury could find in that
party's favor, thereby establishing a genuine issue of fact for trial.” Galli v. N.J.
Meadowlands Comm'n, 490 F.3d 265, 270 (3d Cir. 2007) (citing FED. R. CIV. P.
56(e)). Although the non-moving party’s evidence may be either direct or
circumstantial, and “need not be as great as a preponderance, the evidence
must be more than a scintilla.” Id. (quoting Hugh v. Butler Cnty. Family YMCA,
418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for summary judgment,
“the judge's function is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249.
A. Motion to Strike November 29, 2016 Declaration of Ari Weitzner, M.D.:
Defendants’ now argue that the Third Weitzner Declaration was improper,
and thus the Declaration and any reference to it should be stricken. Defendants’
base their claim of impropriety on three grounds. First, Defendants invoke the
Sham Affidavit Doctrine to argue that the Third Weitzner Declaration must be
stricken as it disputes Dr. Weitzner’s earlier sworn testimony without providing an
adequate explanation for the conflict. Second, Defendants’ argue that Dr.
Weitzner lacked the personal knowledge required to author a Declaration
compliant with Federal Rule of Civil Procedure 56(c). Third, Defendants contend
that the Declaration serves to impermissibly expand the class definition in such a
way that unduly prejudices the Defendants.
Plaintiffs do not directly address whether the Third Weitzner Declaration
should be considered under the Sham Affidavit Doctrine, but do point to
independent evidence to bolster the Declaration. Further, Plaintiffs fail to directly
address whether Dr. Weitzner had the requisite personal knowledge of the
claims and transactions in the Declaration and in the Com plaint. However,
Plaintiffs do argue that the information in the Declaration is capable of admission
at trial and as such should be considered at sum mary judgment. Finally, Plaintiffs
argue that the expansion of the class definition does not unduly prejudice the
The Sham Affidavit Doctrine does not bar the Third Weitzner
While the Federal Rules of Civil Procedure do not address how courts
should address contradictory affidavits, the United States Court of Appeals for
the Third Circuit (“Third Circuit”) has held that “a party may not create a material
issue of fact to defeat summary judgment by filling an affidavit disputing his or
her own sworn testimony without demonstrating a plausible explanation for the
conduct.” Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004) (citing Hackman v.
Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991)). “This principle of summary
judgment practice is often referred to as the ‘sham affidavit doctrine.’” Price v.
Trans Union, LLC, 737 F. Supp. 2d 281, 286 (E.D. Pa. 2010) (internal citation
omitted). The doctrine’s purpose is to remove from the record any “affidavit that
indicates only that the affiant cannot maintain a consistent story or is willing to
offer a statement solely for the purpose of defeating summary judgment.” York
Int’l Corp. V. Liberty Mut. Ins. Co., No. 1:10-CV-0692, 2015 W L 4162981, at *15
(M.D. Pa. July, 9, 2015) (emphasis added). To that end, the doctrine permits a
district court to disregard an “affidavit that is submitted in opposition to a motion
for summary judgment when the affidavit contradicts the affiant’s prior deposition
testimony.” Baer, 392 F.3d at 624.
Some courts have adopted a strict interpretation of the Sham Affidavit
Doctrine. These courts will strike any affidavit that contradicts prior sworn
deposition testimony. See, e.g., Jones v. General Motors Corp., 939 F.2d 380,
385 (6th Cir. 1991) ("[I]t is well settled that a plaintiff may not create a factual
issue for the purpose of defeating a motion for summary judgment by filing an
affidavit contradicting a statement the plaintiff made in a prior deposition.");
Buckner v. Sam's Club, Inc., 75 F.3d 290, 292-93 (7th Cir. 1996) (“As a general
rule, the law of this circuit does not permit a party to create an issue of fact by
submitting an affidavit whose conclusions contradict prior deposition or other
sworn testimony.”). The Third Circuit has not been so unforgiving. Rather, the
Third Circuit has adopted a more flexible approach which provides that an
affidavit will not be stricken “[w]hen there is independent evidence in the record
to bolster an otherwise questionable affidavit,” or when the affiant is able to
provide a “satisfactory explanation” for the conflict between the prior deposition
and the affidavit. Hackman, 932 F.2d at 241. However, when independent
evidence does not exist and the affiant “does not explain the contradiction
between a subsequent affidavit and a prior deposition, it is appropriate for the
district court to disregard the subsequent affidavit and the alleged factual issue in
dispute as sham. . . .” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247 (3d Cir.
In this case, there is no question that the story provided by Dr. Weitzner
has experienced variation over the course of litigation. First, and most
importantly, Defendants point to the First W eitzner Declaration and subsequent
deposition testimony where Dr. Weitzner made no mention of receiving any fax
except the one received on April 21, 2004. (Doc. 106, ¶ 23-24) Now, in his Third
Declaration, Dr. Weitzner claims he received a second fax on March 22, 2005.
(Doc. 116). This would place Dr. Weitzner firmly within the class as it was
defined in the Motion for Class Certification, and First Weitzner Declaration. As
properly noted by Defendants, this position was altered after Dr. Weitzner
acknowledged at his second deposition on September 20, 2016 that if the First
Fax was the only fax he or the P.C. received he would not be a member of the
class he sought to represent. (Doc. 105, Ex. A).
While the timing of this modification is suspect, the Third Circuit directs
this court to determine whether there is independent evidence or a satisfactory
explanation to support the modification. Here, there is. Plaintiffs have produced
evidence to support the modification: a March 22, 2005 fax in its entirety. (Doc.
116, Ex. B). The existence of the fax makes it more likely that Dr. Weitzner was
simply “mistaken, confused, or without possession of all the facts during” his
contradictory deposition, and negates the notion that he authored the T hird
Declaration with the sole intent to avoid summary judgment. Rossi v. All Holding
Co., No. 3:CV-11-1641, 2014 W L 346934, at * 7 (M.D. Pa. Jan. 30, 2014) (citing
Jiminez, 503 F.3d at 254). This change in Weitzner’s story will not render his
Third Declaration a “sham.”
Defendants also contend that the Third Weitzner Declaration contradicts
prior deposition testimony related to the status of Ari Weitzner, M.D., P.C..
Defendants argue that Dr. Weitzner has stated that the P.C. was closed, and at
other times that it was active. Defendants point to the Second–now
withdrawn–Weitzner Declaration and Dr. Weitzner’s deposition testimony in an
attempt to show that regarding the P.C. as active in the Third Declaration is a
variation in Weitzner’s story that contradicts prior sworn testimony. In the Second
Declaration, Dr. Weitzner states that:
The previous declaration that I submitted contained two oversights.
First I left my optholmology practice in 2015 and joined one called
Union Square Eye Care in Manhattan. However, my professional
corporation, of which I am still the sole principal, has continued to
maintain active status.
(Doc. 101, ¶ 2). Defendants argue that this contradicts his prior deposition testimony
where he stated that the P.C. transacts no business, and has no em ployees. (Doc.
147, Ex. A at 25). But, Defendants are incorrect.
In each of the three Weitzner Declarations, Dr. Weitzner states that the P.C.
remains in active status. As Plaintiffs correctly note, Defendants cite to no authority
that supports the notion that a business m ust be operating to be considered “active.”
The fact that the business is not currently operating has not impacted the “active”
status claimed by Dr. Weitzner or reported by the New York Department of State.
Simply, the Sham Affidavit Doctrine does not apply on these facts.
Finally, the Defendants argue that the Third Weitzner Declaration contradicts
prior sworn testimony provided by Dr. Weitzner regarding who received the faxes at
issue. But, Dr. Weitzner has maintained throughout all three Declarations that the P.C.
received a fax. This is evidenced by the fact the P.C. was named in each Declaration.
Defendants point to his deposition testimony in which Dr. Weitzner states that the P.C.
received no fax. (Doc. 105, Ex. A at 113.) While true, this contradiction does not render
the Declaration a “sham.” It is clear to the Court from the provided deposition testimony
that Dr. Weitzner was, and still may be, “confused” about the distinction between his
personal representation and his representation of the P.C..4 See Rossi, 2014 WL
346934, at * 7. For this reason, this discrepancy will not cause the Court to strike the
Third Weitzner Declaration.
The requirement of personal knowledge will not bar the Third Weitzner
Defendants argue that the Third Weitzner Declaration was not based on Dr.
Weitzner’s personal knowledge. Defendants only make a generalized claim that the
entire Affidavit lacks personal knowledge, and does not point to a specific paragraph in
the Third Weitzner Declaration. But, Defendants’ argument references paragraphs
seven and eight by implication. Thus, this Court will limit its analysis to those two
On numerous occasions in Dr. Weitzner’s third deposition he had to be
reminded that there was a difference between his personal and
representative capacity. And, on multiple occasions he confused the two.
See, e.g., Doc. 143-4, at 64:10-25; 65:1-5.
paragraphs in the Third Weitzner Declaration.
Federal Rule of Civil Procedure 56(c)(4) provides that “[a]n affidavit or
declaration used to support a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” FED.R.CIV.P. 56(c)(4). As such, a court
should not credit statements in affidavits that amount to "unsupported assertions made
in the absence of personal knowledge" Reynolds v. Dep't of Army, 439 Fed. Appx.
150, 152 (3d Cir. 2011). However, otherwise inadmissible evidence may be considered
on summary judgment if the evidence is capable of being presented in an admissible
form at trial. See, e.g., J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542
(3d Cir. 1990) (“We thus concluded that hearsay evidence produced in an affidavit
opposing summary judgment may be considered if the out-of-court declarant could
later present the evidence through direct testimony, i.e., in a form that would be
admissible at trial.”); Petruzzi’s IGA Supermarkets v. Darling-Delaware Co., 998 F.2d
1224, 1235 n.9 (3d Cir. 1993) (“W hile this statement as it stands now is hearsay, in
this circuit it can be considered on a motion for summary judgment because it is
capable of being admissible at trial.”). Thus, this analysis runs parallel to, and must
consider, the Federal Rules of Evidence.
Federal Rule of Evidence 602 governs the scope of witness testimony. Namely,
it permits a witness to “testify to a matter only if sufficient evidence is introduced to
support a finding that the witness has personal knowledge of the matter.” FED.R.EVID.
602. The threshold for admissibility created by Rule 602 is quite low; testimony should
be admitted if the judge could reasonably find that the witness perceived the events.
See, e.g., Knopick v. Downey, No. 1:09-CV-1287, 2013 W L 1882983, at *12 (M.D. Pa.
May 6, 2013) (citing Sullivan v. Warminster Twp., 461 F. App’x 157, 162 (3d Cir.
2012)). But, courts have not extended such leniency to allow witness testimony that is
merely based on speculation as to what a third party believed or knew. Id.
Further, the Federal Rules of Evidence generally exclude hearsay evidence.
Hearsay is an out-of-court statement offered into evidence to prove the truth of the
matter asserted. See FED.R.EVID. 801(c). But, not all hearsay statements are
inadmissible. In fact, the Federal Rules of Evidence provide that while some
statements meet the traditional definition of hearsay they are considered “not hearsay.”
See FED.R.EVID. 801(d).
Defendants’ contention that the entire Third Weitzner Declaration lacks personal
knowledge is incorrect. Rather, as detailed below, certain averments within the
Declaration lacked sufficient personal knowledge as required by the Federal Rules.
First, paragraph seven of the Third Weitzner Declaration lacks the requisite
personal knowledge. Paragraph seven states:
Following discussions that I had about the class period with my counsel,
Mr. Bank, to whom I had regularly sent my fax advertisements in 2004
and 2005, Mr. Bank informed me that there were additional faxes of the
same type as the first Fax that were sent to the same fax number. One of
these faxes was sent on or about March 22, 2005. (“Second Fax”). In
addition, the Second Fax was sent to the same fax machine that had
received the First Fax.
(Doc 116, at ¶ 7 ) (emphasis added). As Defendants correctly note, Dr. Weitzner did
not have the requisite personal knowledge to make this statement. Dr. Weitzner
admitted as much in his deposition on January 10, 2017:
Q: Do you have any understanding, Dr. Weitzner of how many faxes you
actually received other than based on the expertise of your lawyers?
A: I have no independent recollection of how many faxes I received.
That’s exactly right.
(Doc. 145-4, at 62:21-25).
While Federal Rule of Civil Procedure 56(c)(4) and Federal Rule of Evidence
602 seem to bar this evidence because Dr. Weitzner admittedly lacked personal
knowledge, it is important to remember that otherwise inadmissible evidence may be
considered at summary judgment if it is capable of being presented in an admissible
form at trial. While the existence and contents of the Second Fax as it stands now are
inadmissible hearsay, it may still be considered at summary judgment because both
are capable of being presented in an admissible form at trial. See FED.R.EVID.
801(d)(2); Frankenberry v. FBI, No. 3:08-1565, 2012 U.S. Dist. LEXIS 39027, at *19-20
(citing J.F. Freeser, Inc., 909 F.2d at 1542; Petruzzi’s IGA Supermarkets, Inc., 998
F.2d at 1235 n.9). As such, it would be inappropriate to strike paragraph seven.
Second, paragraph eight of the Third Weitzner Declaration arguably lacks the
requisite personal knowledge. Paragraph eight states:
I understand that, based on several parts of this Complaint in this lawsuit,
and depending upon this Court’s resolution of legal issues pertaining to
the statute of limitations, the class period could begin as early as February
Defendants asked Dr. Weitzner about this averment in his third deposition:
Q: Is it accurate to say that you have no personal knowledge of any parts
of the Complaint that could result in the class period beginning as early as
February 14, 2001?
A: I have no personal knowledge. I base – I rely on the expertise of my
Q: All right. So this understanding, then, that you have is based totally on
the expertise of your lawyers?
A: That’s exactly right.
While Defendants’ properly note that he has no personal knowledge regarding the
parts of the Complaint that would allow for the expansion of the class period,
paragraph eight is capable of admission at trial. Remember, the standard imposed by
Rule 602 presents a low bar for admission. See United States v. Gerard, 507 Fed.
App’x 218, 222 (3d Cir. 2012) (“Rule 602 creates a low threshold for admissibility, and
a judge should admit witness testimony if the jury could reasonably find that the
witness perceived the event.”); United States v. Hickey, 917 F.2d 901, 904 (6th Cir.
1990) (“Testimony should not be excluded for lack of personal knowledge unless no
reasonable juror could believe that the witness had the ability and opportunity to
perceive the event that he testifies about.”); Sullivan, 461 F. App’x at 162. All Plaintiffs
would need to show is that Dr. Weitzner “perceived the events” that caused him to
make the conclusions regarding the expansion of the class definition in his Third
Declaration. Those “events” were meetings with his lawyers, and experiences at
depositions held by the Defendants. When asked about those events at his third
deposition, Dr. Weitzner provided a level of personal knowledge that would overcome
a challenge under Rule 602 at trial. (Doc. 147, Ex. A at 47-48). Therefore, paragraph 8
will not be stricken.
The Third Weitzner Declaration does not impermissibly seek to expand
the class definition and amendment is not prejudicial.
Defendants’ argue that although Plaintiffs assert that the Third Weitzner
Declaration merely refines Dr. Weitzner’s understanding of the class definition,
Plaintiffs in fact impermissibly seek to amend the scope and definition of the class
sought to be certified without leave of court. Defendants contend that such leave would
be required. Further, Defendants believe that permitting any amendment at this stage
would be prejudicial because the Third Weitzner Declaration was filed after
Defendants had submitted their Brief in Opposition to Class Certification. Plaintiffs
disagree. Plaintiffs contend that leave of court is not required for amendment, and that
Defendants have suffered no prejudice as a result of such amendment.
Federal Rule of Civil Procedure 23(c)(1) provides a mechanism for modification
of class definition, and as such “[a] court is not bound by the class definition proposed
in the complaint.” Weisfeld v. Sun Chem. Corp., 84 F. App’x. 257, 259 (3d Cir. 2004)
(citing Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993)). This is a sensible rule
because holding a plaintiff to their original class definition “would ignore the ongoing
refinement and give-and-take inherent in class action litigation, particularly in the
formation of a workable class definition.” In the Matter of: Monumental Life Insurance
Co., 365 F.3d 408, 414 (5 th Cir. 2004). To this end, courts have allowed Plaintiffs to
substantially modify proposed class definitions initially set forth in their Complaint
throughout the course of litigation. See, e.g., Gates v. Rohm & Haas Co., 265 F.R.D.
208, 215 n.10 (E.D. Pa. 2010) (citing Robidoux, 987 F.2d at 937) (noting that Plaintiffs
were permitted to substantially modify the proposed class definition in their reply brief).
Here, the class definition provided in the Complaint identifies a class period
from February 14, 2005 to the date of the resolution of this lawsuit. The First Weitzner
Declaration contains a slightly different class definition than the Complaint. The
Second Weitzner Declaration–now withdrawn–defined the class from June 1, 2002 to
February 13, 2005. Now, in the Third Weitzner Declaration and Plaintiffs’
Memorandum in Opposition to Defendants’ Motion to Strike Declarations, define the
class as beginning on February 14, 2001 to the resolution of this action. (Doc. 152, at
19). Such modification is illustrative of the “give-and-take inherent in class action
litigation,” and not of an attempt to unduly prejudice Defendants.
While expansion of the class period has been permitted in the past, this Court
must still determine whether the modification of the class definition at this time would
unduly prejudice Defendants. Defendants’ correctly note that the modification of the
class currently at issue occurred in the Third Weitzner Declaration. This Declaration
was filed on November 29, 2016 (Doc. 116); after Defendants had already filed their
Brief in Opposition to Plaintiffs’ Motion for Class Certification. (Doc. 102). Defendants
claim that “[s]uch amendment this late in the litigation is prejudicial to Defendants, who
are deprived of meaningful opportunity to present defenses to these additional claims.”
(Doc. 154, at 17). However, Defendants fail to meaningfully articulate the defenses
foreclosed by the timing of the modification. Rather, Defendants throughout their brief
call the claims included in this modification “untimely,” or “time-barred.” (Doc. 154, at
17; Doc. 154, at 12). As Plaintiffs note, Defendants already raise arguments related to
the timeliness of claims in their papers. (Doc. 152 at 21-22). Moreover, Defendants
had the opportunity to respond to the proposed class expansion in their brief in
response to Plaintiffs’ Brief in Opposition to Summary Judgment. Since Defendants
have failed to offer any concrete prejudice caused by the timing of the modification,
this Court will not grant the Motion to Strike.
B. Motion to Strike Plaintiffs’ Answer to Defendants’ Statement of Facts:
Defendants move to strike Plaintiffs’ Answer to Defendants’ Statement of Facts
pursuant to Local Rule 56.1 and Federal Rule of Civil Procedure 56. In doing so,
Defendants contend that Plaintiffs failed to properly prepare their response in three
distinct respects. First, Defendants claim the Plaintiffs failed to properly deny facts
provided in Defendants’ Statement of Facts as required by Federal Rule of Civil
Procedure 56(e) and Local Rule 56.1. Their argument follows that since Plaintiffs failed
to make any denial, even generally, to forty-nine (49) of the seventy-three (73)
statements of fact produced by Defendants, all forty-nine (49) should be admitted.
Second, Defendants argue that any denial supported by reference to the Third
Weitzner Declaration is improper as the Declaration should be considered a “sham
affidavit.” Such a finding would strike seven (7) of Plaintiffs’ responses. Finally,
Defendants contend that Plaintiffs’ response impermissibly contains lengthy argument,
and thus should be stricken from the record. If Defendants are correct, only three (3)
statements offered by Plaintiffs would remain.
Plaintiffs do not dispute that they failed to make even general denials to the
forty-nine (49) statements identified by Defendants. Rather, Plaintiffs focus their
argument on the propriety of the Third Weitzner Declaration and the form of
statements contained in their response. Specifically, Plaintiffs claim that Defendants’
reference and reliance on the Third Weitzner Declaration is improper under Local Rule
7.8(a). Further, without reference to a single authority, Plaintiffs contend that the
statements contained within their response are not lengthy or argumentative in
violation of the Federal or Local Rules.
The forty-nine (49) unopposed statements contained in Defendants’
Statement of Facts will be admitted.
Defendants’ correctly note that Plaintiffs failed to comply with Local Rule 56.1
when they did not specifically deny the averments made in Defendants’ Statement of
Facts. (Doc. 146, at 5-6). Rather than responding to each statement made by
Defendants, (Doc. 106), Plaintiffs decided to respond to a mere twenty-four (24). (Doc.
118). Because Plaintiffs failed to provide any opposition to forty-nine (49) of the
seventy-three (73) paragraphs in Defendants’ Statement of Facts, all facts within the
noted forty-nine (49) paragraphs will be considered unopposed and admitted under
Local Rule 56.1. 5 See Sorgnard, 286 F. Supp. 2d at 448 n.3.
Denials Supported by the Third Declaration of Dr. Weitzner will Not be
As noted above, the Motion to Strike the Third Weitzner Declaration will be
denied. For this reason, any citation to the Third Declaration in Plaintiffs’ Answer to
Defendants’ Statement of Facts will remain similarly intact. Notably, Local Rule 7.8(a)
had no role in the Courts analysis.
The form of Statements within Plaintiffs’ response violate Local Rule 56.1
and will be stricken.
As mentioned earlier, Local Rule 56.1 directs parties moving for summary
judgment to provide the court with “a separate, short and concise statement of material
facts, in numbered paragraphs, as to which the moving party contends there is no
genuine issue to be tried.” Local Rule 56.1. Similarly it requires the non-moving party
provide “a separate, short and concise statement of the material facts, responding to
the numbered paragraphs set forth in the statement required [from the moving party],
as to which it is contended that there exists a genuine issue to be tried.” Id. Both
statements must “include references to the parts of the record that support” their
factual statements. Id. The purpose of this statement of facts is “to structure a party’s
summary judgment legal and factual theory into a format that permits and facilitates
the court’s direct and accurate consideration to the m otion.” Hartshorn, 2009 WL
761270, at *3 (internal citation omitted). To this end, a proper statement of facts should
enable “the court to identify contested facts expeditiously and [prevent] factual
disputes from becoming obscured by a lengthy record.” Pinegar v. Shinseki, No. 1:07-
The paragraphs in Defendants’ Statement of Facts that were unopposed
and will be deemed admitted are: 1; 2; 3; 4; 5; 8; 9; 10; 11; 12; 14; 15; 16;
17; 18; 19; 20; 23; 26; 27; 29; 30; 31; 32; 33; 34; 35; 39; 46; 47; 50; 51;
53; 55; 56; 57; 58; 62; 63; 64; 65; 66; 67; 68; 69; 70; 71; 72; and 73.
CV-0313, 2009 WL 1324125, at *1 (M.D. Pa. May, 12, 2009). Courts have the
discretion to either strike a statement for non-compliance with the local rule, or deem
the opposing statement admitted. See, e.g., Hartshorn, 2009 WL 761270, at *3;
Armenti v. Tomalis, No. 1:12-CV-2039, 2016 W L 6493483, at *1-2 (M.D. Pa. Nov. 2,
Defendants contend that many of Plaintiffs’ responses contain impermissible
argument and fail to provide “concise” statements in violation of Local Rule 56.1. In
large part this Court agrees. Plaintiffs’ have provided a lengthy6 response that runs
afoul of the purpose for Local Rule 56.1. The statements identified by Defendants7
regularly include long excerpts from deposition testimony in an attempt to explain or
contextualize a fact presented by the Defendants. Facially, this is impermissible under
the Local Rule. Because this Court finds that many of the statements within Plaintiffs’
response contravene the purpose of Local Rule 56.1, those statements will be
Therefore, only six (6) statements8 made in Defendants’ Statement of Facts will
be considered contested for purposes of summary judgment.
C. Motion for Summary Judgment:
Defendants’ base their Motion for Summary Judgment on four separate and
Plaintiffs’ response can not be considered concise. W hile only responding
to 24 of the 73 averments made in Defendants’ Statement of Fact,
Plaintiffs’ response is over twice as long. As such, Plaintiffs’ response is in
violation of the Local Rules.
Defendants’ specifically note the argumentative nature of Plaintiffs’
responses to paragraphs: 13; 21; 24; 25; 36; 37; 38; 39; 41; 42; 43; 48;
49; 52; 54; 59; 60; and 61. All will be excluded. Paragraph 40 will be
similarly excluded for violating the Local Rule.
The contested statements are found in paragraphs 6, 7, 22, 28, 44, and
45 of Defendants’ Statement of Facts.
distinct grounds.9 First, Defendants’ argue that Plaintiffs’ claims are time-barred by the
statute of limitations because the tolling principles of American Pipe do not apply, and
alternatively, even if they do apply, Plaintiffs filed their federal complaint after the
statute of limitations expired. Second, Defendants argue that Plaintiffs lack standing
because Defendants believe that neither Dr. Weitzner, nor his P.C. suffered
cognizable injury during the defined class period. Third, Defendants contend that
Plaintiffs have failed to demonstrate that Defendant Sanofi Pasteur, Inc. sent a fax to
Plaintiffs, and as such Defendant Sanofi must be removed from this action. Finally,
Defendants argue that the current named Plaintiffs are not members of the class they
seek to represent, and thus as a matter of law summary judgment should be granted.
Plaintiffs’ Individual and Class Claims are Time-Barred10
In American Pipe & Construction Company v. Utah, the Supreme Court held
that “the 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
This Court will not address three of the four arguments presented by
Defendants’ because the inapplicability of American Pipe tolling is
Defendants did not affirmatively raise the statute of limitations defense in
their answer to the complaint as required by Federal Rule of Civil
Procedure 8(c), but this Court will still consider whether Plaintiffs claims
are time-barred. Federal Rule of Civil Procedure 8(c) requires that “[i]n a
pleading to a preceding pleading, a party should set forth affirmatively” the
defense of statute of limitations. FED.R.CIV.P. 8(c). Normally, when an a
defendant fails to plead an affirmative defense in their answer, the
defense is waived. See Charpentier v. Godsil, 937 F.2d 859, 863-64 (3d
Cir. 1991). However, since Plaintiffs offered no objection to the defense
“when expressly invoked in [Defendants] motion for summary judgment,”
the Court will consider its validity. Mitchelll v. Guzick, No. 3:02-CV-0178,
2004 U.S. Dist. LEXIS 29895, at *21 n.4 (M.D. Pa. July 26, 2004); see
Printz v. Greate Bay Cassino Corp., 705 F.2d 692, 694 (3d Cir. 1983)
(noting that Fed.R.Civ.P 15(c) provides that issues tried by the express or
implied consent of the parties “are treated in all respects as if they had
been raised in the pleadings”).
the suit been permitted to continue as a class action.” 414 U.S. 538, 554 (1974). In
other words, the filing of a class action lawsuit tolls the statute of limitations as to all
asserted members of the previously filed class. Id. Tolling lasts “until the propriety of
maintaining the suit as a class action is determined.” Leyse v. Bank of America N.A.,
538 F. App’x 156, 161 (3d Cir. 2013), vacated on other grounds, 804 F.3d 316 (3d Cir.
2015); see Sawyer v. Atlas Heating and Sheet Metal Works, Inc., 642 F.3d 560, 563
(7th Cir. 2011) (“Tolling [under American Pipe] lasts from the day a class claim is
asserted until the day the suit is conclusively not a class action–which may be because
the judge rules adversely to the plaintiff, or because the plaintiff reads the handwriting
on the wall and decides not to throw good money after bad.”).
This doctrine is at the heart of the dispute between the parties before this Court
at summary judgment. If the doctrine does not apply, Defendants are owed summary
judgment as Plaintiffs’ action would be barred as a matter of law. In this case, a fouryear statute of limitations is appropriate. 11 The First Fax was received by Plaintiffs on
April 21, 2004. (Doc. 106, ¶ 23). This means that without application of American
Pipe, any federal complaint related to the First Fax would have needed to be filed by
April 21, 2008. The Second Fax was received by Plaintiffs on March 22, 2005, and
thus any federal complaint related to the Second Fax would have needed to be filed by
March 22, 2009. Plaintiffs filed their federal Complaint on November 26, 2011. (Doc.
1). Therefore, without the application of a tolling doctrine it is clear Plaintiffs’ Complaint
As this Court suggested during the disposition of the Motion to Dismiss,
the four-year statute of limitations will apply. See Hawk Valley, Inc., v.
Taylor, No. 10-CV-00804, 2012 W L 1079965, at *9-10 (E.D. Pa. Mar. 30,
2012) (finding Mims v. Arrow Fin. Servs., LLC., 565 U.S. 368 (2012), an
additional support for rejecting the argument that state statute of
limitations applied to a TCPA claim); see also, 645 F.3d at 561 (7 th Cir.
The first question this Court must address is whether or not American Pipe
tolling is applicable to the class claims at issue. Defendants suggest that American
Pipe is only applicable for class claims when: (1) the proposed class is substantively
identical to the class sought to be certified in the state-court action; (2) Plaintiffs were
unnamed class members in the state-court action; and (3) Plaintiffs are new class
representatives for the proposed class.
First, for tolling to apply, the claims do not have to be identical, but only
substantially similar to those brought in the original class action. See In re Linerboard
Antitrust Litigation, 223 F.R.D. 335, 351 (E.D. Pa. 2009) (citing Crown, Cork & Seal,
Inc. v. Parker, 462 U.S. 345, 355 (1983)). Defendants properly identify this
requirement. But, Defendants incorrectly suggest that Plaintiffs claims are not
substantially similar to those brought in the original action. The exact same legal
question is at issue: Did the Defendants violate the TCPA? And, the factual averments
presented by the state and federal claims are nearly identical with exception for the
class period. Therefore, when viewing the facts in the light most favorable to Plaintiffs,
it is evident that Plaintiffs established that they meet this requirement.
Second, when applying American Pipe to subsequent class actions, Defendants
are correct that the Third Circuit has limited the doctrine’s application to subsequent
class actions brought by new would-be class representatives. In fact, the Third Circuit
has recently stated that American Pipe tolling does not apply when a named-plaintiff in
a prior action subsequently files another class action based on the same claim as a
named-plaintiff yet again. See Leyse, 538 Fed. App’x at 162. (“American Pipe was
intended to prevent repetitious filings and to protect unnamed plaintiffs. This concern is
not relevant with respect to the named plaintiff in the prior class action. Thus, we agree
that the Supreme Court did not intend for American Pipe tolling to protect individuals
like [plaintiff], who initiated the prior class action and was a named plaintiff in that prior
suit.”); see also Vincent v. Money Store, 915 F. Supp. 2d 553, 561 (S.D. N.Y. 2013)
(explaining that “[t]he policy behind American Pipe counsels against allowing named
plaintiffs in a prior class action, as opposed to absent class m embers, to have their
claims tolled.”). This requirement prevents an earlier class representative from
attempting to “resuscitate a class that a court held to be inappropriate as a class
action.” Yang v. Odom, 392 F.3d 97, 104 (3d Cir. 2004) (citing McKowan & Co., Ltd. v.
Jasmine, Ltd., 295 F.3d 380, (3d Cir. 2002)).
In this case, it does appear that Dr. W einstein is attempting to “resuscitate” the
failed state class action. As noted above, the legal and factual claims presented in the
state and federal actions are nearly identical. Notably, Dr. Weitzner was the named
representative for the class in the state court action, and is one of the named
representatives in the action now before this Court. This runs directly contrary to the
purpose of American Pipe tolling as it was described by the Third Circuit in Leyse. See
538 Fed. App’x at 162. It is true, that Ari W eitzner, M.D., P.C. was not a named
representative in the action below. However, it would be a stretch of logic to imagine
the P.C., an entity solely owned and occasionally operated by Dr. Weitzner, could be
used to circumvent the purpose of American Pipe. If that were the case, a single
Plaintiff could continue to “resuscitate” claims repeatedly by hiding behind a corporate
veil. Because Dr. Weitzner was the class representative in the state court action,
American Pipe will not apply to the class claims.
Since American Pipe tolling is inapplicable to the class claims, Defendants are
owed summary judgment on the class claims because they are time-barred. As such,
summary judgment will be granted in favor of the Defendants on the class claims
presently before this Court.
American Pipe tolling is similarly unavailable for Dr. Weitzner’s individual claim.
Just as with new class claims, individual claims may only be brought by those that did
not earlier serve as class representative. The Supreme Court has suggested as much
recently when it stated that American Pipe was grounded in “policies of judicial
administration,” and “demonstrate only that a person not a party to a class suit may
receive certain benefits (such as the tolling of a limitations period) related to that
proceeding.” Smith v. Bayer Corp., 564 U.S. 299, 313 n.10 (2011) (emphasis added).
Put simply, the advantages of tolling articulated by the Supreme Court in American
Pipe and Crown Cork do not apply to revived claims by class representatives. See id.
The purpose of tolling during a class action was to reduce duplicative filings by
encouraging unnamed class members to wait on filing their own complaints. See
American Pipe, 414 U.S. at 553-554. To allow tolling for a named representative does
not decrease duplicative filings as the named representative has already filed a
complaint, and likely motions, on the issue. Because Dr. W eitzner was a class
representative below, American Pipe tolling does not apply to Dr. Weitzner’s individual
claim. Therefore, summary judgment will be granted in favor of Defendants for Dr.
Weitzner’s individual claim.
It is important to remember that “the tolling rule of American Pipe is a generous
one, inviting abuse.” Crown, Cork & Seal Co., Inc., 462 U.S. at 354 (1983) (Powell, J.
concurring). It is in this vein that Defendants argue that allowing the P.C. to raise an
individual claim contravenes the purpose of American Pipe, and Leyse. At bottom,
Defendants argue that the P.C. is simply a shell used by Dr. Weitzner to revive the
same claim, based on the same fax transmissions, that failed in state court. As was
noted above, it is not the intent of American Pipe to protect those who “initiated the
prior class action.” See Leyse, 538 Fed. App’x at 162.
Dr. Weitzner is the sole shareholder of the P.C., and as he notes, he “has
always identified the P.C. with [himself].” (Doc. 116, ¶ 2). In fact, Plaintiffs
acknowledge and admit12 that Dr. Weitzner believes he and the P.C. are one. (Doc
106, ¶ 14). He bases the claims brought on behalf of himself and the P.C. on identical
Plaintiffs failed to deny that Dr. Weitzner believes he and the P.C. are the
same entity in their Answer to Defendants’ Statement of Facts. As such,
the fact was deemed admitted.
evidence: the First and Second Fax. In every meaningful way, Dr. Weitzner would be
the beneficiary of the P.C.’s individual claim, and thus tolling would serve protect a
Plaintiff “who initiated the prior action.” Id. Allowing the P.C., on these facts, to seek
shelter from the statute of limitations through the use of the American Pipe tolling rule
would condone the abuse of American Pipe. For this reason, American Pipe tolling will
not apply to the P.C.’s individual claim, and this Court will grant summary judgment in
favor of the Defendants.
For the above stated reasons: Defendants’ Motion to Strike the November 29, 2016
Declaration of Ari Weitzner will be denied; Defendants’ Motion to Strike Plaintiffs’ Answer
to Defendants’ Statement of Facts will be granted in part as Plaintiffs’ failed to comply with
the Local Rules; and Defendants’ Motion for Summary Judgment will be granted in its
entirety because American Pipe tolling does not apply to shield those who initiated a prior
action and subsequently assert the same facts and claims in a new action. Finally,
Plaintiffs’ Motion for Class Certification is moot because this Court will grant Defendants’
Motion for Summary Judgment.
An appropriate order follows.
September 6, 2017
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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