United States District Court, S.D. West Virginia, Huntington Division
CARLTON & HARRIS CHIROPRACTIC INC., a West Virginia corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,
MEDITAB SOFTWARE, INC., a California corporation, and, JOHN DOES 1-5, Defendants.
MEMORANDUM OPINON AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's “Placeholder”
Motion for Class Certification and Request for Status
Conference. ECF No. 4. For the following reasons, the Court
DENIES the motion.
August 16, 2017, Plaintiff Carlton & Harris Chiropractic,
Inc. filed a Class Action Complaint, alleging Defendants sent
it unsolicited advertising facsimiles in violation of the
Federal Telephone Consumer Protection Act of 1991, as amended
by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227
(“JFPA”). Compl. at ¶¶1-2.
Defendants are Meditab Software, Inc. and John Does 1-5.
Plaintiff asserts that John Does 1-5 are not presently known,
but they will be identified through discovery. Id.
at ¶11. In the Complaint, Plaintiff seeks to represent a
class defined as:
All persons who (1) on or after four years prior to the
filing of this action, (2) were sent telephone facsimile
messages of material advertising the commercial availability
or quality of any property, goods, or services by or on
behalf of Defendants, and (3) from whom Defendants did not
obtain “prior express invitation or permission”
to send fax advertisements, or (4) with whom Defendants did
not have an established business relationship, or (5) where
the fax advertisements did not include an opt-out notice
compliant with 47 C.F.R. § 64.1200(a)(4)(iii).
Id. at ¶18. In support of certifying a class,
Plaintiff alleges that, based upon information and belief,
the proposed class is at least forty members who share
“[c]ommon questions of law and fact[.]”
Id. at ¶¶19-20. Plaintiff claims
commonality exists because of Defendants' “general
policy” of “faxing a single form advertisement to
persons on a list generated by Defendants and/or a third
party and did not obtain prior express invitation or
permission to send Defendants' advertisement by fax
and/or failed to include the proper opt-out notice required
by federal law and regulations.” Pl.s'
“Placeholder” Mot., at 4 (citation omitted).
deciding this motion, the Court is mindful of the broad
discretion it has in determining whether a class should be
certified under Rule 23. Lienhart v. Dryvit Syss.,
Inc., 255 F.3d 138, 146 (4th Cir. 2001) (citations
omitted). However, a class action is “an exception to
the usual rule that litigation is conducted by and on behalf
of the individual named parties only, ” Comcast
Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013) (internal
quotation marks and citation omitted), and “[t]he party
seeking class certification bears the burden of proof.”
Lienhart, 255 F.3d at 146, citing Int'l
Woodworkers of Am. v. Chesapeake Bay Plywood Corp., 659
F.2d 1259, 1267 (4th Cir. 1981); see also Thorn v.
Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th
Cir. 2006) (For class actions, “‘plaintiffs bear
the burden . . . of demonstrating satisfaction of the Rule 23
requirements and the district court is required to make
findings on whether the plaintiffs carried their burden . . .
.'”) (quoting Gariety v. Grant Thornton,
LLP, 368 F.3d 356, 370 (4th Cir. 2004)). As an
exception, the Court may certify a class only if it “is
satisfied, after a rigorous analysis, that the prerequisites
of Rule 23(a) have been satisfied.” Gen Tel. Co. of
Sw. v. Falcon, 457 U.S. 147, 161 (1982).
the “rigorous analysis” standard, Plaintiff first
must meet the requirements of Rule 23(a), which requires:
(1) the class is so numerous that joinder of all members is
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a). These factors are “commonly
referred to as the requirements of numerosity, commonality,
typicality, and adequacy of representation.” Perry
v. Tri-State Chrysler Jeep, LLC, No. CIV.A. 3:08-0104,
2008 WL 1780938, at *5 (S.D. W.Va. Apr. 16, 2008) (citing
Gunnells v. Healthplan Servs., Inc. 348
F.3d 417, 459 (4th Cir. 2003). Second, the proposed class
must meet “at least one of the three requirements
listed in Rule 23(b).” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 345 (2011).
after Plaintiff filed its Complaint, Plaintiff filed the
pending motion for class certification to serve as a
“placeholder.” In its motion, Plaintiff asks the
Court to allow the certification motion to remain pending
until all Rule 23 discovery is complete. Once this discovery
is complete, Plaintiff asserts it will file a memorandum in
support of its motion. Plaintiff argues that its
“placeholder” motion is necessary to prevent
“pick-off tactics, ” in which defendants will
offer individual relief to the plaintiff to moot the case.
motion is virtually identical to one recently resolved by the
Western District of North Carolina in RJF Chiropractic
Center, Inc. v. BSN Medical, Inc., Civ. Act. No.
3:16-CV-00842-RJC-DSC, 2017 WL 4542389 (W.D. N.C. Oct. 11,
2017). In fact, RJF has the same out-of-state
counsel as in the present case. ...