United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING PLAINTIFF'S MOTION
REGARDING SEQUENCING CLASS CERTIFICATION AND DISPOSITIVE
MOTIONS (DKT. 20) AND DENYING AS MOOT DEFENDANT'S MOTION
TO STAY DISCOVERY, FOR A PROTECTIVE ORDER, AND TO QUASH
THIRD-PARTY SUBPOENAS (DKT. 22)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
case alleges violations of the Telephone Consumer Protection
Act (“TCPA”), 47 U.S.C. § 227. Plaintiff
Fred Dembski claims that Defendant Clear Rate Communications,
Inc. placed unwanted calls to him and other individuals on
the Do Not Call Registry, in violation of the TCPA. The
parties dispute whether the schedule in this case should
first allow for Clear Rate to file a motion for summary
judgment based on a “safe harbor” defense to the
TCPA, or whether the Court should first consider a class
certification motion. Clear Rate has also filed a motion
requesting that the Court stay discovery pending the
resolution of this issue (Dkt. 22).
Rate argues that it can avoid liability under the TCPA's
“safe harbor” defense, and therefore asks that
the Court (1) limit initial discovery to this issue, and (2)
allow Clear Rate to file a dispositive motion on its safe
harbor defense, before the Court allows the parties to engage
in class discovery. Def. Resp. to Pl. Mot. Re Sequencing at
1-2 (Dkt. 21). It contends that allowing Dembski to take
discovery on class-wide issues could involve tens of millions
of call records, which would force the parties to incur
substantial discovery costs, and that it would be more
efficient to limit discovery to the discrete and dispositive
issue of the “safe harbor” defense. Id.
at 8. Dembski argues that there is substantial overlap
between “safe harbor” discovery and class
discovery, and that Clear Rate's anticipated summary
judgment motion is unlikely to resolve this case. Pl. Resp.
to Def. Mot. at 1 (Dkt. 25).
order to prevail on its safe harbor defense, Clear Rate would
need to show that (1) the violation of the requirement to
honor the do-not-call registration was the result of error,
and (2) that part of its routine business practice, it meets
certain standards as to its written procedures, personnel
training, recording, and accessing the national do-not-call
database. 47 C.F.R. § 64.1200(c)(2)(i). The parties'
dispute centers around this first requirement; i.e., what
Clear Rate would need to show in order to prove error.
Rate points to Simmons v. Charter Communications,
Inc., 222 F.Supp.3d 121, 135 (D. Conn. 2016), where the
court held that “[a] party can support a claim of error
by showing that the telephone solicitation was made
unintentionally.” One way to do so is “to show
the ‘procedural breakdowns that led to such calls, as
well as the steps that the seller has taken to minimize
future errors.'” Id. (quoting In re
Dynasty Mortg., LLC, 20 F.C.C. Rcd. 4921, 4929-4930
(2005)). Clear Rate argues that a defendant can avoid
liability by showing that it took sufficient steps to comply
with the safe harbor provisions; as such, this issue involves
limited discovery and is case dispositive. Def. Resp. to Pl.
Mot. at 10.
also relies on Simmons, but argues that
“error” turns on whether Clear Rate knew or
should have known that it was calling a number on the Do Not
Call list. Pl. Resp. to Mot. at 8-9 (Dkt. 25). Because
Dembski himself allegedly advised the caller that he was on a
Do Not Call list on the first of five calls he received, he
argues that this precludes a finding as a matter of law that
subsequent calls were made in “error.”
Id. at 9; see also Compl. ¶¶
14-18 (alleging calls were made to Dembski even after he told
the agent he was registered on the Do Not Call list).
Court finds that bifurcation of discovery is unnecessary. The
court in Simmons allowed that “[o]ne
method” of showing that a call was made in error was to
show procedural breakdowns that led to the calls, but then
went on to say that “it is not clear that procedural
breakdown is the sine qua non of the safe harbor
provision.” 222 F.Supp.3d at 135. And the court was
clear that “a party could not claim ‘error'
simply by showing that it ‘meets all other safe harbor
criteria[.]'” Id. (quoting
Dynasty, 20 F.C.C. Rcd. at 4929). As such, a summary
judgment motion on the issue of a “safe harbor”
may not resolve the case as easily Clear Rate believes, and
discovery related to this issue may not be as limited,
Dembski's arguments regarding overlap between class
discovery and merits discovery likely mean that bifurcating
discovery would lead to future motion practice before the
Court regarding the scope of any discovery taken. Thus, the
Court finds that proceeding with the schedule as outlined in
the Scheduling Order (Dkt. 17) promotes judicial efficiency
and a prompt resolution of this case.
motion regarding sequencing and class certification (Dkt. 18)
is granted, and Clear Rate's request for a stay on class
discovery (as raised in the response to Dembski's motion)
is denied. As Clear Rate's motion to stay discovery, for
a protective order, and to quash third party subpoenas (Dkt.
22) requests “a protective order staying all discovery
and quashing the third-party subpoenas until such time that
the Court has an opportunity to issue a decision on ...