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Carlton & Harris Chiropractic, Inc. v. Meditab Software, Inc.

United States District Court, S.D. West Virginia, Huntington Division

November 1, 2017

CARLTON & HARRIS CHIROPRACTIC INC., a West Virginia corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,
v.
MEDITAB SOFTWARE, INC., a California corporation, and, JOHN DOES 1-5, Defendants.

          MEMORANDUM OPINON AND ORDER

          ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE.

         Pending 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.

         On 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).

         In 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).

         Under 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 impracticable;
(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).

         One day 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.

         This 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. ...


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