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Lavigne v. First Community Bancshares, Inc.

United States District Court, D. New Mexico

June 5, 2018

JANINE LAVIGNE, Plaintiff,
v.
FIRST COMMUNITY BANCSHARES, INC. and FIRST NATIONAL BANK TEXAS, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO CERTIFY AND DENYING DEFENDANTS' MOTION TO STRIKE AFFIDAVIT

         THIS MATTER comes before the Court upon Plaintiff's Motion to Certify Class, filed March 17, 2017 (Doc. 74), and Defendants' Motion to Strike Declaration of Plaintiff's Fact Witness Anya Verkhovskaya, filed November 7, 2017 (Doc. 103). Having reviewed the parties' briefs and the applicable law, the Court finds that Plaintiff's Motion to Certify Class is well-taken, and therefore, is GRANTED. Defendant's Motion to Strike Affidavit is DENIED.

         BACKGROUND

         This is a putative class action for relief under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227. Plaintiff alleges that Defendant First Community Bancshares, Inc., and its subsidiary Defendant First National Bank Texas (“Defendants”) violated the TCPA by placing telephone calls to her cellular telephone for nonemergency purposes, without her consent, using an “automatic telephone dialing system” (“ATDS”) as defined by the TCPA, 47 U.S.C. § 227(a)(1).[1] Plaintiff seeks relief under the TCPA for herself and all others similarly situated. Defendants deny liability. The amended complaint (Doc. 41) includes general allegations asserted on behalf of the putative class and asserts Violations of the TCPA (Count I) and Willful Violations of the TCPA (Count II).

         Defendant First National Bank of Texas is a retail bank with locations in Texas, Arizona and Mexico. It is a subsidiary of Defendant First Community Bancshares, Inc. Defendants contracted with GC Services to place calls to their customers with overdrafted bank accounts. Plaintiff alleges that, after she acquired her cell phone number ending -4951, Defendants repeatedly called her using an auto-dialer, in reference to an over-drafted bank account, despite the fact that she repeatedly told Defendants they have the wrong person. Plaintiff was not a customer of the Defendants. Plaintiff alleges that, after seeing GC Service's number on caller ID, she called in an explained that Defendants were calling the wrong person. Apparently, GC Services noted in their logs that the number they used to call Plaintiff was a “Bad/Wrong Number”, but the calls persisted. GC Services' call logs are returned to Defendants each day. Plaintiff alleges that Defendants did not consider the “Bad/Wrong Number” entries, but simply resubmitted her phone number to GC Services for use the next day. Thus, it is unclear whether Defendants and GC Services had any system in place to maintain compliance with the TCPA.

         Customers of the Defendants sign deposit agreements, and consent to receive calls from Defendants placed through an automatic dialer.

         Plaintiff seeks to certify, pursuant to Fed.R.Civ.P. 23(b)(3), a class of:

All persons who, since November 11, 2012, (1) called First National Bank Texas and First Community Bancshares, Inc., through their vendor GC services, and such call was coded “Bad/Wrong Number” and (2) were subsequently called again by First National Bank Texas and First Community Bancshares, Inc., through their vendor GC Services with an automatic telephone dialing system and such call was again coded as “Bad/Wrong Number.”

See Doc. 74. In her reply, Plaintiff amended her class as follows (modifications in bold):

All persons who, since November 11, 2012, (1) called First National Bank Texas and First Community Bancshares, Inc., through their vendor GC services, and such call was coded “Bad/Wrong Number” and (2) were subsequently called again by First National Bank Texas and First Community Bancshares, Inc., on their cellular telephones through their vendor GC Services with an automatic telephone dialing system and such call was again coded as “Bad/Wrong Number.”

Doc. 108.[2] Plaintiff seeks to certify a class of individuals they claim called Defendant to say that Defendant was calling the wrong number, but whom Defendants continued to call anyway, and were again coded as “Bad/Wrong Number.” Plaintiff intends that the class will only include non-customers, and proposes to weed-out any customers form the class by reference to Defendants' business records (i.e., deposit agreements), or through affidavits from class members averring that they were not customers of the Defendants.

         Mark Schordock, a GC Services Representative, testified that an incoming call coded as “Bad/Wrong Number” means that “somebody's saying it's not them that we're dialing.” Tr., Mark Schordock, p. 51, ll. 17-18. He also testified that it could mean that “the person doesn't live there anymore… it could be giving you a different number to reach customer at…there could be a lot of reasons. But, basically, they're saying they got a call from - and who we're trying to reach is not there.” Much later, in an affidavit, Mr. Schordock listed numerous reasons why a call could be coded as “Bad/Wrong Number”, other than that the called party was calling back to give express notice that they were not customers.

         This class certification litigation has been burdened by four separate rounds of briefing, and an eight month delay for additional discovery. The surreply was filed on April 23, 2018, and this matter is now ready for ruling.

         DISCUSSION

         To certify a class under Fed.R.Civ.P. 23, Plaintiff bears the burden of showing that “(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 and 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). The Plaintiff must also show that the action is maintainable under Fed.R.Civ.P. 23(b)(1) -(3).

         The Court must engage in a “rigorous analysis of whether the threshold requirements of Rule 23(a) are satisfied.” Shook v. El Paso County, 3865 F.3d 963, 968 (10th Cir. 2004); Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1218 (10th Cir. 2013). This is not a pleading standard, and Plaintiff must “affirmatively demonstrate” her compliance with the rules. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551 (2011); XTO Energy, Inc., 725 F.3d at 1218 (plaintiff has “strict burden of proof”). “Whether a case should be allowed to proceed as a class action involves intensely practical considerations, most of which are purely factual or fact-intensive. Each case must be decided on its own facts, on the basis of ‘practicalities and prudential considerations.” Monreal v. Potter, 367 F.3d 1224, 1238 (10th Cir.2004) (internal quotation marks omitted), quoted in Trevizo v. Adams, 455 F.3d 1155, 1163 (10th Cir. 2006).

         I. Plaintiff Satisfied the Requirements of Fed.R.Civ.P. 23(a).

         A. Numerosity.

         Fed. R. Civ. P. 23(a)(1) requires that a “class is so numerous that joinder of all members is impracticable. There is “no set formula to determine if the class is so numerous that it should be so certified.” Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir.1978), quoted in Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006). “The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Nw., Inc. v. Equal Emp't Opportunity Comm'n, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980).

         Although Plaintiff bears the burden of establishing numerosity, she need not establish any precise number of class members at this stage, or have already identified who is part of the class. Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1214-15 (10th Cir. 2014); Neiberger v. Hawkins, 208 F.R. D. 301, 313 (D. Colo. 2002) (“the exact number of potential members need not be shown”); See also Abdeljalili¸306 F.R.D. 303 (finding numerosity satisfied despite no list of class members); Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1215 (10th Cir. 2014) (court was reasonable in inferring under circumstances that there would be substantial number of class members); See also In Re Alcoholic Bevereages Litig., 95 F.R.D. 321, 324 (E.D.N.Y.1982) (“The fact that the size of the proposed class has not been exactly determined is not a fatal defect in the motion; a class action may proceed upon estimates as to the size of the proposed class.”), cited in Stern v. DoCircle, Inc., 2014 WL 486262, at *4 (C.D. Cal. Jan. 29, 2014).

         Plaintiff submitted an affidavit by Ms. Verkhovskya's, that included an analysis of Defendants' own call logs to identify 38, 125 separate phone numbers (both landline and cell phone) that called in, were coded as “Bad/Wrong Number”, and were subsequently called again by Defendants and coded as “Bad/Wrong Number.” Ms. Verkhovskya then used data from Nexxa, a third party, to identify that 37, 219 of these numbers belonged to cell phones.

         Defendants filed a motion to strike the affidavit of Ms. Verkhovskaya. (Doc. 103). Initially, the Court doubts that Ms. Verkhovskaya needs to be an expert to perform the limited tabulations in the affidavit.[3] See Abante Rooter & Plumbing, Inc. v. Alarm.com Inc., 2017 WL 1806583, at *5 (N.D. Cal. 2017), amended 2018 WL 558844 (N.D. Cal. 2018); see also West v. California Servs. Bureau, Inc., 323 F.R.D. 295, 305 (N.D. Cal. 2017), citing Villanueva v. Liberty Acquisitions Svc., LLC, 319 F.R.D. 307, 315 (D. Or. 2017) (relying on data analysis conducted by attorney and attorney's staff to establish numerosity and noting that “[d]istrict courts in the Ninth Circuit have relied on similar evidence as adequate”). Defendants also argue that the Nexxa data relied on by Ms. Verkhovskya is hearsay, and that Ms. Verkhovskya's conversion of PDF records provided by Defendants to Excel is error-ridden.

         Even setting aside the sections of the Ms. Verkhovskya's affidavit tainted by alleged hearsay, Plaintiff has established numerosity. Even if only a fraction of the approximately 38, 125 are in fact class members, the numerosity requirement here is readily satisfied. West v. California Servs. Bureau, Inc., 2017 WL 6316823, at *7 (N.D. Cal. 2017), Munday v. Navy Fed. Credit Union, 2016 WL 7655807, at *3 (C.D. Cal. 2016) (“Because joinder of ...


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