Weitzner et al v. Sanofi Pasteur, Inc. et al

Filing 53

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 9/26/13. (jam)

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-2198

(JUDGE CAPUTO)

Plaintiffs,
v.
SANOFI PASTEUR, INC. formerly known
as AVENTIS PASTEUR INC., and
VAXSERVE, INC., formerly known as
VACCESS AMERICA INC.
Defendants.

MEMORANDUM
Presently before the Court are Defendants’ Motion For Reconsideration and for
Leave to Refile, Amend, and Supplement Defendants’ Motion to Dismiss (Doc. 41) and
Defendants’ Motion for Sanctions (Doc. 47). This matter is a putative class action seeking
compensation for receipt of facsimile advertisements sent without prior express invitation
in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(C).
Defendants seek reconsideration of the Court’s Memorandum and Order, entered on May
14, 2012, denying Defendants’ Motion to Stay the Proceedings pending decision by the
Third Circuit Court of Appeals in Landsman & Funk, P.C. v. Skinder-Strauss Associates
(Doc. 20). Defendants also seek leave to refile, amend, and supplement their earlier Motion
to Dismiss (Doc. 20) in light of an alleged change in the controlling law. Because the Court
does not find sufficient grounds for reconsideration of Defendants’ motion to stay
proceedings in light of Landsman, nor grounds to grant Defendants leave to refile, amend
and supplement their prior motion to dismiss, Defendants’ motion for reconsideration and

leave will be denied. Defendants’ motion for sanctions will also be denied.

BACKGROUND
The background of this case is set forth in the Court’s May 14, 2012 Memorandum
and Order denying Defendants’ earlier motion to either abstain, dismiss, or stay the
proceedings (Doc. 20). Weitzner v. Sanofi Pasteur, Inc., No. 11-CV-2198, 2012 WL
1677340 (M.D. Pa., May 14, 2012). By way of review, the matter before the Court is a class
action lawsuit concerning facsimiles allegedly sent in violation of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(C). Specifically, Plaintiff Ari Weitzner, a
physician who practices in Brooklyn, New York, and Plaintiff Ari Weitzner, M.D., P.C., a
professional corporation practicing at the same address, have filed this action, on behalf of
themselves and others similarly situated, against Sanofi Pasteur, Inc. (formerly known as
Aventis Pasteur Inc.), and Vaxserve, Inc. (formerly known as Vaccess America, Inc.).1 The
TCPA provides for a private right of action, and it explicitly states that such private actions
are to be brought, "if otherwise permitted by the laws or rules of court of a State, . . . in an
appropriate court of that State." Id. at § 227(b)(3). Interpretation of the language in §
227(b)(3) has caused substantial confusion and discussion regarding both jurisdiction of
federal courts to hear claims brought under the TCPA and whether state law places
limitations on actions arising under this statute that are brought in federal court. While the

1

Defendants clarify that VaxServe is a wholly owned subsidiary of Sanofi
Pasteur Inc. (Defs.’ Br. at 11, Doc. 21.)
2

Complaint pled diversity jurisdiction pursuant to the Class Action Fairness Act of 2005,2 the
Court found that in light of the Supreme Court’s holding in Mims v. Arrow Financial Services,
LLC, –– U.S. ––, 132 S. Ct. 740, 747 (2012), the Court had federal question jurisdiction
under 28 U.S.C. § 1331.
On February 6, 2012, the Defendants filed their first motion, to either abstain,
dismiss, or stay the proceedings (Doc. 20), arguing that: (1) pursuant to Colorado River
abstention, the Court should abstain from exercising jurisdiction over this matter in light of
a parallel state court proceeding; (2) the Complaint should be dismissed as Plaintiffs’ claims
have been previously adjudicated in the Lackawanna County Court of Common Pleas and
are thus barred by res judicata; (3) the Complaint should be dismissed as untimely under
the statute of limitations; and (4) the action should be stayed pending the Third Circuit’s
revised decision in Landsman & Funk, P.C. v. Skinder-Strauss Associates, 640 F.3d 72 (3d
Cir. 2011) reh'g en banc granted, 650 F.3d 311 (3d Cir. 2011). The Court denied this
motion in full. The Court declined to exercise Colorado River abstention, finding the state
court analogue to be sufficiently incongruent to be considered parallel. Weitzner, 2012
WL1677349, at *4-5. In addition, because the state court decision not to grant class
certification was not a final decision on the merits, the Court found that it should not be
given res judicata effect. Id. at *6-7. The Court also rejected Defendants’ statute of
limitations argument. Id. at *7-8. Finally, the Court did not find any compelling reason to

2

The Class Action Fairness Act requires that “the aggregate amount in
controversy exceeds $ 5,000,000, the parties are minimally diverse, and the
members of all proposed plaintiff classes are equal to or greater than 100 in
number.” Farina v. Nokia, Inc., 625 F.3d 97, 110 (3d Cir. 2010); 28 U.S.C. §
1332(d).
3

stay the matter pending rehearing en banc in Landsman. Id. at *8-9.
Because Defendants rely on heavily on Landsman in support of their current motion,
a brief overview of the case is provided below.3

In Landsman & Funk, P.C. v.

Skinder–Strauss Associates, 636 F. Supp. 2d 359 (D. N.J. 2009) (“Landsman I”), Judge
Hayden granted defendant Skinder’s motion to dismiss plaintiff Landsman & Funk, P.C.’s
class action complaint alleging violations of the TCPA for sending it and others unsolicited
advertisements via facsimile. Id. at 361. Landsman then filed an amended complaint,
which defendant Skinder moved to dismiss for lack of subject matter jurisdiction. Judge
Hayden determined that there was no federal-question jurisdiction for TCPA claims. Id. at
362–63. The court then analyzed whether it had jurisdiction to hear the case pursuant to
its diversity jurisdiction, under 28 U.S.C. § 1332(d)(2) as amended by the Class Action
Fairness Act of 2005. Id. at 363. Defendant Skinder argued that diversity jurisdiction was
absent. After conducting a choice-of-law analysis pursuant to Erie R. Co. v. Tompkins, 304
U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), and the Restatement (Second) of Conflict of
Laws, the court concluded that New York applied. As a result, because Landsman could
not meet the $5,000,000 amount-in-controversy requirement of 28 U.S.C. § 1332(d) and
since New York law does not recognize class actions premised on statutory damages, the
court dismissed the case.
Landsman appealed, and the case was consolidated with two others from the District
of New Jersey, Goodrich Management Corp. v. Afgo Mechanical Services, Inc., No.
3

This overview is based on Judge Hayden’s description of the procedural
background of the Landsman litigation in Landsman & Funk, P.C. v. SkinderStrauss Assoc., No. 08-3610, 2012 WL 6622120, at *1-3 (D. N.J. Dec. 19,
2012).
4

09–00043, 2009 WL 2602200 (D. N.J., Aug. 24, 2009) (Martini, J.) and Goodrich
Management Corp. v. Flierwire Inc., No. 08–5818 PGS, 2009 WL 3029758 (D.N.J. Sept.
22, 2009) (Sheridan, J.).

The appellate panel first agreed that there was no

federal-question jurisdiction. Landsman & Funk P.C. v. Skinder–Strauss Assocs., 640 F.3d
72, 78 (3d Cir. 2011) (“[T]he TCPA has neither divested federal courts of diversity
jurisdiction over private causes of action nor conferred on them federal question
jurisdiction.”). In Part F of its opinion, the panel held that this Court had erred by conducting
a choice-of-law analysis, despite the absence of federal-question jurisdiction, because
Landsman had sought relief under federal, not state, law. Id. at 91. The Third Circuit Court
of Appeals explained that “there was no need for choice-of-law analysis under Erie“ and that
“under Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393,
130 S.Ct. 1431, 176 L.Ed.2d 311 (2010), federal law regarding class actions would be
applied in federal courts, not state law.” Id. (footnotes omitted). In footnote 27, the panel
went on to explain its interpretation of the private-right-of-action clause:
[W]e do not interpret § 227(b)(3)'s “if otherwise permitted by the laws or rules
of court of a State” language to carve out TCPA claims from Rule 23's
ambit.... This language deals with the threshold requirement of where and
when TCPA suits can be brought. It basically authorizes a state to keep these
claims out of state court, but it does not explicitly require the application of
state law or direct federal courts to defer to state law in deciding whether a
class action can be maintained.
Id. at 91 n. 27 (citations omitted). Since the panel interpreted New York Civil Practice Law
Rule § 901(b)'s prohibition on statutory class actions to be inapplicable, the case was
remanded for a determination of whether Rule 23's prerequisites had been satisfied. Id. at
92, 95.
Defendant Skinder sought rehearing en banc, which was granted. Landsman & Funk
5

P.C. v. Skinder–Strauss Assocs., 650 F.3d 311 (3d Cir. 2011). However, before the
rehearing was held, the Supreme Court issued its decision in Mims v. Arrow Financial
Services, LLC, –– U.S. ––, 132 S. Ct. 740, 181 L. Ed. 2d 881 (2012), holding that “federal
and state courts have concurrent jurisdiction over private suits arising under the TCPA,” and
therefore, that district courts can exercise federal question jurisdiction over TCPA claims.
Id. at 745, 753.
After Mims was handed down from the Supreme Court, the Third Circuit Court of
Appeals vacated its grant of rehearing en banc. The Court of Appeals explained:
This Court having granted en banc rehearing of these cases in order to
decide whether federal courts have jurisdiction over causes of action arising
under the Telephone Consumer Protection Act, which has now been resolved
in favor of federal jurisdiction. . . ; and the parties having raised additional
arguments in supplemental briefing that this Court ordered in light of Mims
that were not ruled upon by the District Court, It is ordered that the order of
this Court dated May 17, 2011, granting en banc reargument of these cases,
is hereby vacated. The opinion of this Court filed in these consolidated cases
on April 4, 2011, is therefore reinstated to the extent it is consistent with
Mims. The discussion of Rule 23's applicability to TCPA class actions filed in
federal court at Section F of that opinion, including footnote 27, is wholly
excepted from reinstatement and does not control subsequent proceedings.
These consolidated cases are hereby remanded to the District Court for
resolution of the effect that § 227(b)(3)'s “if otherwise permitted by laws or
rules of court of a State” language has on such federal TCPA class actions,
i.e., whether it subjects such action to state-law limitations that would apply
to similar suits filed in state court and if so which ones. The District Court
should consider the issue in light Mims and Shady Grove Orthopedic Assocs.,
P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S. Ct. 1431, 176 L. Ed. 2d 311
(2010). The District Court is free to consider all other nonjurisdictional issues
that may properly be raised before it, as well.
Order, Landsman & Funk, P.C. v. Skinder–Strauss Assocs., 09–3105, 2012 WL 2052685,
at *1 (3d Cir. Apr.17, 2012) (“Landsman vacatur”).
On remand, Judge Hayden reversed her earlier decision in Landsman I, concluding
that plaintiff Landsman was “not precluded from bringing this class action complaint.”
6

Landsman & Funk, P.C. v. Skinder–Strauss Associates, No. 08–3610, 2012 WL 6622120
at *1 (D. N.J. Dec.19, 2012) reconsideration denied, No. 08–3610, 2013 WL 466448 (D.
N.J. Feb.8, 2013) (“Landsman II”). Citing Mims and Shady Grove, Judge Hayden denied the
defendant's motion to dismiss, reasoning that “the state-law limitations ... have no
application in this federal-question case in federal court. Federal law only applies, and
Skinder has not otherwise suggested that the complaint fails to state a claim under federal
law.” Id. at *9.
In the present case, on May 28, 2012, Defendants filed their motion for
reconsideration of the Court’s denial of Defendants’ motion to stay in light of the “Third
Circuit’s subsequent order and mandate remanding the case to the district court in
Landsman for a determination of whether § 227(b)(3)’s language subjects federal TCPA
class actions to state law limitations.” (Doc. 42, 4.) Defendants argue that the Third Circuit
Court of Appeals’s April 17, 2012 mandate and order directly affect the decision rendered
by the Court on May 14, 2012. Plaintiff filed a brief in opposition to Defendants’ motion on
June 11, 2012 (Doc. 44), and Defendants filed a reply brief on June 25, 2012 (Doc. 25).
Thus, the issue is now ripe for the Court’s determination.

DISCUSSION
I.

Legal Standard
A motion for reconsideration is governed by Rule 59(e) of the Federal Rules of Civil

Procedure, which allows a party to move to alter or amend a judgment within twenty-eight
(28) days of entry. Alternatively, when the reconsideration motion is not to amend or alter
the judgment pursuant to Rule 59, Middle District of Pennsylvania Local Rule 7.10 allows
7

a party to seek reconsideration within fourteen (14) days of entry of an order. “The purpose
of a motion for reconsideration is to correct manifest errors of law or fact or to present newly
discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985) (citation
omitted). A judgment may be altered or amended if the party seeking reconsideration
establishes at least one of the following: “(1) an intervening change in controlling law; (2)
the availability of new evidence that was not available when the court granted the motion;
or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max's
Seafood Café, by Lou Ann, Inc., v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). “A motion
for reconsideration is not to be used as a means to reargue matters already argued and
disposed of or as an attempt to relitigate a point of disagreement between the Court and
the litigant.” Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002).
“[R]econsideration motions may not be used to raise new arguments or present evidence
that could have been raised prior to the entry of judgment.” Hill v. Tammac Corp., No. 05cv-1148, 2006 WL 529044, at *2 (M.D. Pa. Mar. 3, 2006). Lastly, the reconsideration of a
judgment is an extraordinary remedy, and such motions should be granted sparingly.
D'Angio v. Borough of Nescopeck, 56 F. Supp. 2d 502, 504 (M.D. Pa.1999).
II.

Analysis
a.

Defendants’ Motion for Reconsideration

In support of their motion for reconsideration, Defendants argue that the Landsman
vacatur represents an intervening change in controlling law. (Doc. 41, ¶¶ 23-25.) This is
not the case. As noted above, the Court of Appeals clarified in the Landsman vacatur that
the question of “whether federal courts have jurisdiction over causes of action arising under

8

the Telephone Consumer Protection Act . . . has now been resolved in favor of federal
jurisdiction.” Landsman vacatur, 09–3105, 2012 WL 2052685, at *1. In light of that
information, the Court of Appeals specified that its initial opinion in Landsman was
“reinstated to the extent it is consistent with Mims.” Id. However, the Court of Appeals
explained that its discussion of Rule 23's applicability to TCPA class actions (“Part F” of the
opinion), which was decided under the premise that diversity jurisdiction but not federal
question jurisdiction was appropriate for such cases, was “wholly excepted from
reinstatement and does not control subsequent proceedings.” Id.
The Landsman vacatur did not supply the clear instructive value that Defendants
anticipated,4 and does not represent an intervening change in the controlling law.
Defendants assert that the decision of the Third Circuit Court of Appeals not to reinstate
Part F of its prior decision “directly affects the decision rendered by this Honorable Court”
on May 14, 2012. (Doc 41 ¶ 29.) However, it is not clear how this is so. In the Landsman
vacatur, the Court of Appeals specifically instructed Judge Hayden to consider the issue of
whether § 227(b)(3)’s language subjects federal TCPA class actions to state law limitations
that would apply to similar suits filed in state court. Landsman vacatur, 2012 WL 2052685,
at *1. She was specifically instructed to “consider the issue in light of Mims and Shady
Grove.” Id. These instructions closely resemble the approach the Court took in analyzing
whether to grant Defendants’ motion to stay proceedings in the May 14, 2012 memorandum

4

In their initial motion to stay the proceedings, Defendants argued that “[a]s
Landsman will provide the law in the Third Circuit given the decision in Mims,
a stay pending the decision will clearly simplify the issues and promote
judicial economy.” (Doc 21, 46.)
9

and order. As Plaintiff indicates, at the time of its decision, the Court was aware that
rehearing en banc had been granted by the Court of Appeals regarding the initial Landsman
decision in Landsman & Funk P.C. v. Skinder–Strauss Assocs., 640 F.3d 72, 78 (3d Cir.
2011), and that it had been subsequently postponed in light of the Supreme Court’s grant
of certiorari in Mims. Weitzman, 2012 WL 1677340, at *9.5 Nonetheless, after considering
Mims, the Court found that it had federal question jurisdiction over the case, and issued its
memorandum and order in light of both Mims and Shady Grove. Therefore, Defendants’
assertion that the Landsman vacatur directly affects the decision rendered by the Court
does not automatically follow. If anything, the Lansman vacatur indicates that the Court
applied the appropriate analytical framework in rendering its decision.
Although it may have been premature for the Court to conclude that “now that the
TCPA has recognized federal question jurisdiction, there is no room for a court to determine
that any state class action law could preclude the application of Rule 23 to a TCPA class
action,” Weitzner, 2012 WL 1677340, at *9, this alone does not constitute grounds for
reconsideration as Defendants assert. Indeed, there was room for Judge Hayden, on
remand in Landsman, to reach the conclusion that state law does not preclude the
application of Rule 23 to TCPA class actions, in light of the procedural history of that case.
However, operating under federal question jurisdiction, the Court addressed the issues
before it in light of Mims and Shady Grove, and correctly predicted that subsequent opinions
in Landsman would not dramatically alter the legal landscape in this area. Therefore,

5

Although the Court’s memorandum and order was technically entered after
the Third Circuit Court of Appeals’s vacatur of its order granting a rehearing
en banc, the Court did not make reference to this order.
10

Defendants have failed to demonstrate that there has been an intervening change in the
controlling law.
Significantly, Judge Hayden concluded on remand in Landsman that state law does
not limit federal claims brought under the TCPA, as the Court predicted. In her opinion, she
determined that state law does not govern the viability of TCPA claims in federal court, and
that "a federal court addressing a federal law that serves an important federal interest would
be remiss were it to hold that a plaintiff's claim must be dismissed because of state law."
Landsman II, 2012 WL 6622120, at *6 (Dec. 19, 2012). The court explained that it could
not "find the Third Circuit's remand order [a.k.a. the Landsman vacatur] as indicative of its
interpretation, one way or another. Rather, the Court of Appeals wiped the slate clean and
sought to have the district court assess the TCPA anew, taking Mims into consideration."
Id. at *8. Moreover, as Judge Hayden noted, a strong consensus seems to be building
post-Mims, that state class action law does not limit the application of Rule 23 to TCPA
class action law suits:
Several other courts post-Minis [sic] have come to the same conclusion. See,
e.g., Bais Yaakov of Spring Valley v. Peterson's Nelnet, LLC, Civ. 11–00011,
2012 WL 4903269, at *7 (D. N.J. Oct.17, 2012) (Thompson, J.) (“In light of
Mims, a case bolstering the previous Shady Grove opinion favoring
application of Rule 23 in federal court unless specifically barred by Congress,
this Court does not believe it appropriate to interpret the text of § 227(b)(3) as
requiring a federal court to follow state law.”); Bank v. Spark Energy Holdings,
LLC, 4:11–CV–4082, 2012 WL 4097749, at *2 (S.D. Tex. Sept.13, 2012)
(holding that C.P.L.R. § 901(b) did not bar the class action: “Since this Court
has federal question jurisdiction over Plaintiffs claim, it need not conduct a
choice-of-law analysis and instead applies federal law to Plaintiff's federal
cause of action. Because federal law permits plaintiffs to bring TCPA claims
as class action, the Court denies Defendants' motion to dismiss.” (footnote
omitted)); Jackson's Five Star Catering, Inc. v. Beason, 10–10010, 2012 WL
3205526, at *4 (E.D. Mich. July 26, 2012) (rejecting defendant's argument
that Michigan's ban on statutory class actions barred the action: “A plain text
reading of this statute shows that the phrase ‘if otherwise permitted by the
11

laws or rules of court of a State’ is a limitation on actions ‘[brought] in an
appropriate court of that State.’ Section 227(b)(3) allows states to close their
courthouse doors to actions that the Supremacy Clause would otherwise
require them to maintain, but does not speak to actions brought in the federal
courts and does not require that state substantive law and procedural rules
be imported into federal actions.” (citations omitted)); Bailey v. Domino's
Pizza, LLC, 867 F. Supp. 2d 835, 841 (E.D. La., 2012) (“Section 227(b)(3)
applies to TCPA claims brought in state court but by its plain language does
not reach a TCPA claim brought in federal court under federal-question
jurisdiction. Because § 227(b)(3) does not apply to a federal-court TCPA
claim, it does not import Louisiana prescriptive law to displace the default
four-year statute of limitations created by 28 U.S.C. § 1658.”); Hawk Valley,
Inc. v. Taylor, 10–CV–00804, 2012 WL 1079965, at *12 (E.D. Pa. Mar. 30,
2012) (“With Mims‘ characterization of the TCPA in mind, I cannot conclude
that the words ‘if otherwise permitted by the laws or rules of court of a State’
. . . represent Congress's intent . . . to negate the applicability of Section
1658's four-year catch-all federal limitations period to private actions TCPA
actions.”)

Landsman II, 2012 WL 6622120, at *7. See also , Fitzgerald v. Gann Law Books, Inc.,—
F. Supp. 2d — , No. 11–cv–428, 2013 WL 3892700, at *1 (D. N.J. July 29, 2013) (“Judges
in this District have had occasion to examine this issue on several occasions. Applying U.S.
Supreme Court precedent, those cases have uniformly held that Rule 23, not state law,
governs the viability of a class action brought under TCPA in federal court. I agree.”)
Furthermore, on August 8, 2013, the Second Circuit Court of Appeals clarified that
in light of Mims, state law does not govern the statute of limitations for claims brought under
the TCPA in federal court in Giovanniello v. ALM Media, LLC, No. 10-3854-cv, 2013 WL
4016567 (2d Cir. Aug. 8, 2013). The Second Circuit Court of Appeals explained that “Mims
fundamentally shifts the way that we view section 227(b)(3)'s “if otherwise permitted”
language.” Id. at *4. More specifically, the Court of Appeals clarified that:
Mims . . . suggests that to vindicate the significant federal interest reflected
in the TCPA and to ensure uniformity, TCPA claims in federal court are not
subject to the vagaries of state law. . . . Mims thus suggests that in enacting
12

the TCPA, Congress merely enabled states to decide whether and how to
spend their resources on TCPA enforcement. Such permission from
Congress was necessary to avoid Supremacy Clause concerns. See Mims,
132 S. Ct. at 751 n. 12 (explaining that “[w]ithout the ‘if otherwise permitted’
language, there is little doubt that state courts would be obliged to hear TCPA
claims” because of the Supremacy Clause) (citation omitted). Read in this
way, section 227(b)(3)'s “if otherwise permitted” language plainly has limited
effect and cannot be construed as requiring us to apply state limitations
periods to TCPA claims in federal court.

Id. at *8.
The foregoing cases suggest that despite Defendants’ arguments to the contrary, the
Landsman vacatur has not spurred an “intervening change in controlling law.” If anything,
the alleged “seismic shift” in this area of law was precipitated by the Supreme Court’s
decision in Mims, holding that “Congress did not deprive federal courts of federal-question
jurisdiction over private TCPA suits.” 132 S. Ct. 740 at 747. This decision dramatically
changed the framework for interpretation of § 227(b)(3). However, the Court’s May 14, 2012
memorandum and order took this change into account. Although the Landsman vacatur
provides an interesting snapshot of how Mims shifted the legal landscape regarding class
actions under the TCPA brought in federal court with respect to the specific procedural
history of that case, it does not demonstrate that there has been an intervening change in
the controlling law that affects this case. Therefore, the Court will not grant reconsideration
of the denial of Defendants’ motion to stay proceedings.
b.

Defendants’ Motion for Leave to Refile, Amend and Supplement their Motion
to Dismiss
Federal Rule of Civil Procedure 15(a) governs amendments and supplementation

of pleadings. Under Rule 15(a), a party may amend its pleading after receiving leave of
court, and the court should freely give leave when justice so requires. Fed. R. Civ. P.
13

15(a)(2). It is within the Court's discretion to grant or deny a request for leave to file an
amended pleading. Farmer v. Brennan, 511 U.S. 825, 845, 114 S. Ct. 1970, 1983, 128 L.
Ed. 2d 811 (1994). Furthermore, leave should be freely granted when doing so will promote
the economic and speedy disposition of the whole case, will not cause undue delay or trial
inconvenience, and will not prejudice the rights of any of the other parties to the case. Id.
Rule 15(d) governs the submission of supplemental pleadings. That rule provides
that upon the motion of a party, “the court may, on just terms, permit a party to serve a
supplemental pleading setting out any transaction, occurrence, or event that happened after
the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). A supplemental
complaint thus “refers to events that occurred after the original pleading was filed” whereas
an amendment to a complaint “covers matters that occurred before the filing of the original
pleading but were overlooked at the time.” Owens–Illinois, Inc. v. Lake Shore Land Co.,
610 F.2d 1185, 1188–89 (3d Cir.1979); see also Moore's Federal Practice 3d § 15.30 (“Rule
15(d) applies only to events that have occurred since the date of the filing of the pleading.”).
The grant or denial of a motion for leave to amend or supplement is committed to the
sound discretion of the District Court. Cureton v. NCAA, 252 F.3d 267, 272 (3d Cir. 2001).
Rule 15(a) mandates that leave to amend “shall be freely given when justice so requires,”
however, if the amendment would be futile, it should not be permitted. See Forman v.
Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1982). Further, “prejudice to the
non-moving party is the touchstone” for denying leave to file an amended complaint.
Cornell & Co., Inc. v. OSHA Review Comm'n., 573 F.2d 820, 823 (3d Cir. 1978).
Defendants’ request for leave to refile, amend, and supplement their initial motion

14

to dismiss to specifically address the effect that § 227(b)(3)’s “if otherwise permitted by the
laws or rules of court of a State” language has on federal TCPA class actions. (Doc 42, 13.)
Defendants reiterate “their belief and argument that state law limitations serve to bar a
federal TCPA class action, even in light of the decision by the Supreme Court in Mims.”
(Doc. 41 ¶¶ 35, 40.) Because an intervening change in the law has not transpired since the
Court denied Defendants’ initial motion, Defendants’ request for leave will be denied.
c.

Defendants’ Motion for Sanctions

Defendants move for sanctions against Plaintiffs for engaging in discovery before a
Rule 26(f) conference was held, in violation of Federal Rule of Civil Procedure 26(d). (Doc.
47, ¶¶ 24, 28, 30.) Specifically, Defendants allege, and Plaintiffs agree, that Plaintiffs
mailed to Defendants both a notice of subpoena for production of documents and the
documents later received from List Strategies, Inc. (Doc 47, ¶¶ 16-17; Doc. 48, 2.) Plaintiffs
acknowledge that “[i]n their haste to obtain discovery materials . . . Plaintiffs’ counsel
overlooked the fact that Rule 26 prohibits not just party discovery prior to a Rule 26(f)
conference, but discovery from any source.” (Doc. 48, 1.)
Rule 26(f) requires parties to “confer as soon as practicable” to consider “the nature
and basis of their claims and defenses and the possibilities for promptly settling or resolving
the case” as well as additional matters pertinent to discovery. Fed. R. Civ. P. 26(f)(1) and
(2). Rule 26(d) states that “[a] party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f).” Fed. R. Civ. P. 26(d). Defendants
request that the Court grant sanctions against Plaintiff under Local Rule 83.3.1, which
provides that “[i]n the sound discretion of any judge of this court, after notice and an

15

opportunity to be heard, . . . sanctions may be imposed for failure to comply with any rule
or order of court.” Although Plaintiffs engaged in minimal discovery before a Rule 26(f)
conference was held, given the fact that Defendants did not object to Plaintiffs’ initial notice
of subpoena for production of documents, and since neither party was prejudiced by
Plaintiffs’ actions, the Court will deny this motion for sanctions under Local Rule 83.3.1.

CONCLUSION
Defendants have failed to demonstrate that the Landsman vacatur represents an
intervening change in controlling law that warrants reconsideration of the Court’s May 14,
2012 memorandum and order. Furthermore, the court will not grant Defendants’ request
for leave to refile, amend and supplement their initial motion to dismiss Plaintiff’s complaint
because the Court does not find that there has been an intervening change in the
controlling law. Finally, the Court will deny Defendants’ motion for sanctions. Therefore,
both of the Defendants’ Motions will be denied.
An appropriate Order follows.

September 26, 2013
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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