Anderson v. Domino's Pizza, Inc. et al

Filing 49

RESPONSE, by Defendant Four Our Families, Inc., to 31 MOTION to Certify Class. (Fraley, Nelson)

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Nelson C. Fraley II
Nicole C. Brown
Faubion, Reeder, Fraley,
& Cook, P.S.
5920 100th Street SW, Ste 25
Lakewood, WA 98499
253-581-0660
[e-mail]
[e-mail]

Honorable Ronald B. Leighton

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UNITED STATES DISTRICT COURT WESTERN
DISTRICT OF WASHINGTON AT TACOMA

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CAROLYN ANDERSON,
CASE NO. :C 11-902-RBL

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Plaintiff,

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DEFENDANT FOUR OUR FAMILIES, INC.’S
RESPONSE TO PLAINTIFF’S MOTION FOR
CERTIFICATION OF CLASS

vs.
DOMINO’S PIZZA, INC., DOMINO’S PIZZA, LLC,
FOUR OUR FAMILIES, INC., and CALL-EM-ALL,
LLC.,

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Defendants.

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NOTED ON MOTION CALENDAR: January 13,
2012

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I.

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INTRODUCTION

COMES NOW, the DEFENDANT, FOUR OUR FAMILIES, INC. (“FOFI”) who respectfully

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requests the Court deny Plaintiff’s Motion for Class Certification. Plaintiff has passed the

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deadline to certify the class in this litigation according to the very specific time frame the

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local court rule provides. Local Rule CR 23(i)(3). Plaintiff does not have good cause for
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missing the deadline in order to receive an extension. The following dates are of significance

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to this Motion:

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Plaintiff’s Complaint was filed in King County Superior Court on April 29, 2011.

FOFI Response to Domino’s Motion - 1 of 9
Case: C11-00902 RBL

FAUBION, REEDER, FRALEY & COOK, P.S.
TH
5920 100 Street SW, Ste 25
Lakewood, WA 98499
253-581-0660

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Plaintiff’s First Set of Interrogatories and Request for Production were sent to
FOFI on April 29, 2010.

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Michael Brown’s Deposition was taken on September 30, 2010.

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On April 13, 2011, the first deposition of Domino’s 30(b)(6) representative,
Joseph Devereaux was taken.

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CEA removed this action to federal court on May 31, 2011 after Plaintiff filed an
Amended Complaint in state court adding CEA as a defendant.

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The Plaintiff and Defendants had a conference on July 13, 2011 to comply with
Federal Rule of Civil Procedure 26(f).

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The Plaintiff drafted and filed the Joint Status Report agreed to by all parties on
July 26, 2011.

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The Joint Status Report stated the deadline for class certification was December
1, 2011 and the discovery cutoff for the class certification was October 30, 2011.

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On September 9 and 15, 2011, CEA provided documents regarding the alleged
calls and the number of calls in response to Plaintiff’s First Set of Interrogatories
and Requests for Production propounded to CEA.

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The Depositions of Christopher Roeser and Scott Senne, Domino’s employees
named in Mr. Devereaux testimony regarding the rally and marketing efforts of
Domino’s Pizza, were held on October 28, 2011.

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The Deposition of Brad Herrmann, the president of CEA, was taken on December
2, 2011. (Plaintiff does not use his testimony in her Motion to Certify).

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Plaintiff brings this Motion only to certify the state claims under the Washington statutes,

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RCW 80.36.400 (“ADAD”) and RCW 19.86, et. seq. (“WCPA”), but does not include the causes

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of action under the Telephone Consumer Protection Act (“TCPA”), 47 USC 227(b)(1)(B) as

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alleged in the complaint. 1 FOFI submits this Response to Deny Plaintiff’s Motion and

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attached memorandum of points and authorities.
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“Plaintiff’s Complaint also includes a claim for violation of the Telephone Consumer Protection Act, 47 U.S.C.
227(b)(1)(B) which is not a subject of this motion.” fn. 1 of Plaintiff’s Motion for Class Certification.

FOFI Response to Domino’s Motion - 2 of 9
Case: C11-00902 RBL

FAUBION, REEDER, FRALEY & COOK, P.S.
TH
5920 100 Street SW, Ste 25
Lakewood, WA 98499
253-581-0660

II. ARGUMENT

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A. Plaintiff’s Class Claims Are Untimely

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Plaintiff’s Motion for Class Certification is untimely. The Court is to apply the state
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substantive laws and federal procedural laws. Erie R.R.Co. v. Tompkins, 304 US 64, 58 S. Ct.

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817, 82 L. Ed. 1188 (1938). The Federal and State Superior Court Rules allow a plaintiff to

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certify, “At an early practicable time after a person sues or issued as a class representative,

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the court must determine by order whether to certify the action as a class action.” Fed. Civ.

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Proc. R. 23(c)(1)(A)-Time to Issue; Sup. Crt. CR 23(c). Emphasis added. District Courts are
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allowed to establish their own rules as long as their rules are consistent with the Federal

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Rules and Acts of Congress. Fed. Civ. Proc. R. 83(a)-Local Rules. The Local Federal Civil

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Procedure Rule is very specific and provides an exact date the plaintiff’s motion for class

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certification must be filed. The Local Rule states:
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Within one hundred eighty days after the filing of a complaint in a class action,
unless otherwise ordered by the court or provided by statute, the plaintiff shall
[emphasis added] move for a determination under Fed. R. Civ. P. 23(c)(1), as to
whether the case is to be maintained as a class action. This period may be extended
on motion for good cause [emphasis added]. The court may certify the class, may
disallow and strike the class allegations, or may order postponement of the
determination pending discovery or such other preliminary procedures as appear
appropriate and necessary in the circumstances. Whenever possible, where the
determination is postponed, a date will be fixed by the court for renewal of the
motion. Local Rule W.D. Wash. CR 23(i)(3). Emphasis added.
There is no state law that extends or limits the certification deadline; therefore, the federal
procedural rule controls. Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965).

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In Strange v. Les Schwab Tire Centers, this Court interpreted Local Rule CR 23(f)(3)
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and dealt with the same issues before the Court today. Strange v. Les Schwab Tire Centers of

FOFI Response to Domino’s Motion - 3 of 9
Case: C11-00902 RBL

FAUBION, REEDER, FRALEY & COOK, P.S.
TH
5920 100 Street SW, Ste 25
Lakewood, WA 98499
253-581-0660

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Or., No. C06-045RSM (W.D. Wash. 2008). The complaint was filed on January 11, 2006, and

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an amended complaint on August 1, 2006. The parties filed their joint status report on

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September 12, 2006, identifying that a motion for class certification would be filed on March
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30, 2007. The plaintiffs filed the motion to certify as timely (in early 2008) and did not

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acknowledge the expiration of the deadline. “This Court’s local rules provide a date for class

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certification that is realistic in terms of trial preparation.” Plaintiff did not provide a

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justification for the late motion nor indicate “extraordinary circumstances”. Due to the

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untimely motion (passed the 180 day deadline), the motion to certify was denied.
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Courts in Louisiana, New York, Pennsylvania, and Michigan, have dealt with class

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certification deadlines established by civil procedure rules that range from 60-120 days from

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the filing of the complaint. Each has dismissed class allegations based on this time specific

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filing deadline. Landry v. Liberty Bank & Trust Co. US DC. E.D. LA 05-688711-481(2011);
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Sellers v. El Paso Industrial Energy, 8 So. 3d 723 (La. Crt. App. 2009) (strict application of the

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local 90 day rule, language is clear and plain) (citing Crader v. Pinnacle Entertainment Inc.,

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06-136, 931 So.2d 535(La.App. 3 Cir. 2006) where Plaintiff was slightly over 3 month

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deadline); Nguyen v. Liberty Mutual Insur. Co., US DC E.D. 07-4469 (2008) (all three cases

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interpreting La. C.C.P. art. 592(A)(1) that provides a class certification deadline of 90 days
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after service on all adverse parties of initial pleading); Hill v. City of Warren, 748 NW. 2d.

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520, Mich. (2007) (MCR 3.501(B)(1)(a) provides 91 day deadline); Tigg v. Pirelli Tire Corp.,

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232 S.W.3d 28 (Tenn. SC 2007) (Superior Court Rule allows for “as soon as practicable”, but

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the Circuit Court Rule 26.14 provides 60 days); Shariff v. Goord, US DC W.D. NY (2006) (Local
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Rule CR 23(d) provides 120 days); Walton v. Eaton, 563 F. 2d 66 Ct. App. 3rd Circuit (1977)
FOFI Response to Domino’s Motion - 4 of 9
Case: C11-00902 RBL

FAUBION, REEDER, FRALEY & COOK, P.S.
TH
5920 100 Street SW, Ste 25
Lakewood, WA 98499
253-581-0660

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45(c) of the Rules of the US DC for the ED of PA provides a 90 day deadline, unless this

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period is extended on motion. “Local Rule 45(c) is a valid exercise of the district court's

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power under Fed.R.Civ.Proc. 83.” Citing Umbriac v. American Snacks, Inc., 388 F.Supp. 265,
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274 (E.D.Pa.1975)); Fox v. Prudent Resources, 69 FRD 74, 77 & n. 1 (E.D.Pa.1975). See also

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Gilinsky v. Columbia Univ., 62 FRD 178, 179 (S.D.N.Y.1974) (concerns a similar local rule, the

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S.D.N.Y.'s Civil Rule 11A(c)); Walker v. Columbia Univ., 62 FRD 63, 64 (S.D.N.Y.1974); Sheridan

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v. Liquor Salemen's Union, 60 FRD 48, 50-51 (S.D.N.Y.1973)).

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Anderson has not provided a justification or illustrated extraordinary circumstances.
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Instead, the issue is ignored completely. This matter was removed from state court to

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federal court by Call-Em-All on May 31, 2011. In order to meet the deadline set forth by

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Local CR 23(i)(3), plaintiff was required to bring her motion to certify a class by November

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28, 2011. It did not file its Motion until December 22, 2011. This Motion was filed in reaction
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to Domino’s Response to Plaintiff’s Motion for 56(d) Continuance [dkt. no. 28]. Domino’s

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brought to Plaintiff’s attention that it did not certify the class by the appropriate deadline.

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The Plaintiff more than likely would not have brought her Motion to Certify at that time if

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Domino’s did not draw attention to such an obvious oversight. Plaintiff missed the deadline

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by 26 days. The 180 day deadline is exactly like a statute of limitations for a cause of action
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barring any class claims. The rule clearly states- “Plaintiff shall move”, within 180 days of

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filing of a complaint for class certification, not when Plaintiff feels like getting around to it.

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The Joint Status Report, drafted and filed by Plaintiff on July 26, 2011 and agreed to by all

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the parties, established a deadline for Plaintiff’s Motion for Class Certification by December
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1, 2011. [dkt. no. 15, 2]. The Report outlines a discovery deadline relating to class
FOFI Response to Domino’s Motion - 5 of 9
Case: C11-00902 RBL

FAUBION, REEDER, FRALEY & COOK, P.S.
TH
5920 100 Street SW, Ste 25
Lakewood, WA 98499
253-581-0660

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certification of October 31, 2011, “so that her [Plaintiff] Motion for Class Certification may

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be timely filed. Following the Court’s ruling on class certification, the parties would request

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leave to submit to the Court a discovery plan related to merits.” [dkt. no. 15, ¶ 6]. Plaintiff
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was well aware of the 180 day deadline according to the Joint Status Report she drafted.
The Rule does allow the Court flexibility in allowing a continuance prior to the passing
of the deadline. If Plaintiff needed more time to conduct discovery, a motion for good cause
should have been filed requesting postponement of the determination prior to expiration of

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the deadline. Local Rule CR 23(i)(3). Plaintiffs did not request and Defendants did not agree
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to any further extensions from the December 1, 2011, date in the joint status report. Plaintiff

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has not moved the Court for an extension, much less demonstrated “good cause” for this

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delay. Plaintiff simply ignores this significant oversight.

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B. Plaintiff lacks good cause and should not be granted an extension of time.
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The Plaintiff was required to bring a motion for good cause for an extension of time

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prior to the expiration of the 180 day deadline. Local Rule CR 23(i)(3). Good cause does not

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exist. “Good cause” is a “Legally sufficient reason. Good cause is often the burden placed on

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the litigant (by court rule or order) to show why a request should be granted or an action

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excused.” Black’s Law Dictionary 89 (2nd ed. 2001). The original complaint was filed in King
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County Superior Court on April 29, 2010, (over a year prior to removal to federal court). The

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lawsuit included both FOFI and Domino’s Pizza. The Complaint alleged the same causes of

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action relating to a state and national class as the Amended Complaint (adding CEA as a

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defendant) filed on May 10, 2011. The Complaint contained Counts A, C, D and E and
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FOFI Response to Domino’s Motion - 6 of 9
Case: C11-00902 RBL

FAUBION, REEDER, FRALEY & COOK, P.S.
TH
5920 100 Street SW, Ste 25
Lakewood, WA 98499
253-581-0660

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explained the elements of the National and Washington classes. The definition of the

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Washington Class in the original Complaint is identical to the one Plaintiff proposes today:

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Washington State Class: All Washington persons who received a pre-recorded
telephone message on their telephone from Defendants sent by automatic dialing
machine for purposes of commercial solicitation at any time for the period that
begins 4 years from the date of this complaint to trial. See, Complaint filed with
Notice of Removal.

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The causes of action did not change when the Amended Complaint was filed. See,

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documents filed with Notice of Removal. [dkt. No. 1].

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Discovery began in this matter on April 29, 2010, when Plaintiff sent her First Set of

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Interrogatories and Requests for Production to FOFI. Discovery with FOFI continued on
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September 30, 2010, with the deposition of Mike Brown, President and Owner of FOFI. Since

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Plaintiff’s First Set of Interrogatories, FOFI has defended its action of making telephone calls

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to customers with whom it maintains a business relationship. In fact, Mr. Brown estimates

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more than 5,000 calls were made in the first download and that more calls were made. Exh.
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7 to Joint Decl. 30 [dkt. No. 32]. CEA provided documentation on September 9 and 15, 2011,

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in response to Plaintiff’s First Set of Interrogatories and Requests for Production to Call-Em-

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All. Exh. 4 to Jt. Decl. [dkt. No. 32]. The documents stated the amount of calls made and to

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whom the calls were made. No further discovery needed to be performed in order to form

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the class as of September 2011. In fact, the only relevant discovery performed since that
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date and this Motion is the Deposition of Brad Herrmann, the president of CEA in on

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December 2, 2011. Plaintiff does not use Mr. Herrmann’s deposition testimony in this

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Motion as a basis for class certification. See, Motion [dkt. no. 31] Plaintiff only uses

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information she has had in her possession between the summer of 2010 to September 15,
FOFI Response to Domino’s Motion - 7 of 9
Case: C11-00902 RBL

FAUBION, REEDER, FRALEY & COOK, P.S.
TH
5920 100 Street SW, Ste 25
Lakewood, WA 98499
253-581-0660

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2011. According to Plaintiff’s Motion, she had the discovery in her possession as of

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September 2011, which forms the basis of Plaintiff’s proposed class. Plaintiff failed to meet

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the deadline outlined in the joint status report (December 1, 2011) and the deadline
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established by court rule (November 28, 2011). Good cause does not exist and Plaintiff’s
Motion should be denied.

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III.

CONCLUSION

Plaintiff has failed to bring this Motion within the 180 day deadline as required by

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Local Rule CR 23(i). Like a statute of limitations, this deadline shall bar Plaintiff’s state class
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allegations. The language of the rule is plain and clear. Good cause does not exist for such

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failure. The Defendant Four Our Families Inc., respectfully request Plaintiff’s Motion for

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Class Certification be denied.

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Dated at Lakewood, Washington this 9th day of January, 2012.

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FAUBION REEDER FRALEY & COOK, P.S.

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By /s/ Nelson Fraley, II________________
NICOLE BROWN, WSBA No. 40704
NELSON C. FRALEY II, WSBA No. 26742
Attorneys for Four Our Families, Inc.

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FOFI Response to Domino’s Motion - 8 of 9
Case: C11-00902 RBL

FAUBION, REEDER, FRALEY & COOK, P.S.
TH
5920 100 Street SW, Ste 25
Lakewood, WA 98499
253-581-0660

CERTIFICATE OF SERVICE

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I hereby certify that on January 9, 2012, I electronically served the foregoing to the parties
listed below:

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Kim Williams
Rob Williamson
Williamson & Williams
187 Parfitt Way SW, Suite 250
Bainbridge Island, WA 98110
Attorneys for Plaintiff

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David M. Soderland
Dunlap & Soderland, P.S.
901 Fifth Avenue, Suite 3003
Seattle, WA 98164
Attorneys for Domino’s Pizza

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Kelly P. Corr
Christina N. Dimock
Corr Cronin Michelson, et al.
1001 Fourth Avenue, Suite 3900
Seattle, WA 98154
Attorneys for Call-Em-All, LLC
Andrew B. Lustigman
Scott Shaffer
Olshan Grundman Frome
Rosenzweig & Wolosky, LLP
Park Avenue Tower
65 East 55th Street
New York, NY 10022
Pro Hac Vice Attorneys for Call-Em-All, LLC
s/ Lona Hertz
Faubion Reeder Fraley & Cook, PS
5920 100th Street SW, Suite 25
Lakewood, WA 98499
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

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FOFI Response to Domino’s Motion - 9 of 9
Case: C11-00902 RBL

FAUBION, REEDER, FRALEY & COOK, P.S.
TH
5920 100 Street SW, Ste 25
Lakewood, WA 98499
253-581-0660