Adler v. All Hours Plumbing Drain Cleaning 24-7-365 LLC

1

JILL ADLER, individually and on behalf of All others similarly situated, Plaintiff, v. ALL HOURS PLUMBING DRAIN CLEANING 24-7-365 LLC, Defendant.

No. 2:21-cv-00141

United States District Court, D. Utah, Central Division

October 26, 2022

MEMORANDUM DECISION & ORDER

Dustin B. Pead United States Chief Magistrate Judge

INTRODUCTION

Plaintiff Jill Adler (“Adler”) brings this action against Defendant All Hours Plumbing Drain Cleaning 24-7-365 LLC (“All Hours”), seeking class-wide relief under the Telephone Consumer Protection Act of 1991 (“TCPA”).^[1] The TCPA prohibits calls that “include[] or introduce[] an advertisement or constitute[] telemarketing, using ... an artificial or prerecorded voice”^[2] to a number assigned to a cellular telephone service^[3] without “prior express written consent[.]”^[4]

Currently pending before the court^[5] is Adler's Motion for Class Certification and Appointment of Class Counsel (“Motion”).^[6] For the reasons stated below Plaintiff's Motion for Class Certification is GRANTED subject to modification of the proposed class.

BACKGROUND

All Hours provides plumbing, heating, air, and fireplace services and repair to customers in Salt Lake City, Utah and the greater Salt Lake City area.^[7] To market its services, Defendant uses various channels, including print, home shows, direct mail, and social media.^[8] In doing so, All Hours utilizes the “ServiceTitan” customer relationship management platform to manage its customer information.^[9] As part of the ServiceTitan platform, Defendant maintains customer profiles for Plaintiff and each putative Class member that includes the type of account, telephone number, email address, and home address.^[10]

In January 2021, during a company marketing meeting, Chuck Staszkiewicz (“Staszkiewicz”), one of All Hours' owners, came up with the idea of marketing to consumers through the use of prerecorded messages.^[11] Ryan Rooney (“Rooney”), All Hours' Digital Marketing Specialist, was instructed by Staszkiewicz to locate a prerecorded voice transmission service, which Mr. Rooney did, preforming a Google search that led him to the company VoiceShot, LLC (“VoiceShot”).^[12]

The robocall at issue in this matter was recorded by one of Defendant's employees, Steve Olson (“Olson”) on his cellular telephone.^[13] All Hours' Marketing Department prepared the script for the message.^[14] After Mr. Olson recorded the message, he sent it to Mr. Rooney to upload into the VoiceShot platform, which Mr. Rooney did through use of the platform's web portal.^[15] Mr. Rooney also uploaded a list of 4,999 telephone numbers and names that were targeted with the prerecorded message.^[16] Defendant maintains a copy of the customer list it uploaded onto the VoiceShot platform within its Google drive.^[17]

On February 22, 2021, Mr. Rooney launched the robocall campaign by clicking a button on the VoiceShot platform that caused it to transmit the prerecorded message to each of the uploaded telephone numbers.^[18] The prerecorded message sent to the Plaintiff and putative Class members stated:

Hi, Steve here with All Hours Plumbing Heating and Air. With the changing temperatures, have you found yourself being a thermostat disc jockey with no audience? We wanna stop playing twist and shout with the thermostat and help you make that tax refund that you may have received last for years by investing in your biggest purchase: your home. Now is perfect time to update your home's furnace and air conditioning. This week only we have a special offer for our premium clients. The first 50 furnace and AC combo installations scheduled and completed will receive a PlayStation 5. So call us today to learn more and book your appointment today at 801-997-9591. That's 801-997-9591, and you have an awesome, great day.^[19]

All of the 4,999 telephone numbers were sent the same message with the intended purpose of marketing Defendant's services.^[20] Defendant does not dispute that Plaintiff received the prerecorded message on February 22, 2021.^[21] Plaintiff received the prerecorded message on her cellular telephone number.^[22]

In response to a subpoena issued by Plaintiff, VoiceShot produced a spreadsheet containing a list of the successfully delivered prerecorded voice calls sent by All Hours to Plaintiff and the Class members using the VoiceShot Platform.^[23] As reflected by VoiceShot's computer generated call records, on February 22, 2021, Defendant successfully placed 3,347 prerecorded calls to 3,347 unique telephone numbers.^[24] Defendant disputes the accuracy of VoiceShot's records, noting that many of the calls which VoiceShot states were successfully delivered to voicemail were less than the fifty-one second length of the prerecorded message at issue.^[25]

The roughly 4,999 telephone numbers that were targeted with the prerecorded message are telephone numbers of All Hours' prior customers obtained through Defendant's website or over the phone.^[26] The list of target telephone numbers was compiled by Andrea Tran (“Tran”), a member of Defendant's Marketing Department.^[27] Tran utilized the ServiceTitan platform to apply filters that removed all telephone numbers associated with any business customer and searched for all individual customers who had an open service during the last year, thereby resulting in approximately 4,999 customer telephone numbers.^[28] Defendant does not have a disclosure from any of the 4,999 individuals it tried to contact with a robocall that authorized Defendant to call with a prerecorded telemarketing message.^[29]

PROCEDURAL HISTORY

Adler filed suit on March 8, 2021.^[30] All Hours filed its Answer on April 16, 2021.^[31]

On March 29, 2022, All Hours moved to add a counterclaim for damages in quantum meruit.^[32] The court, however, concluded that Defendant failed to establish good cause for amendment and denied All Hours' motion to add counterclaim.^[33]

On May 2, 2022, Adler filed her Motion to Certify Class.^[34] Through her Motion, Adler seeks to certify the following class:

All persons in the United States who on or about February 22, 2021 were delivered the following prerecorded voice call by Defendant through the VoiceShot platform:

“Hi, Steve here with All Hours Plumbing Heating and Air. With the changing temperatures, have you found yourself being a thermostat disc jockey with no audience? We wanna stop playing twist and shout with the thermostat and help you make that tax refund that you may have received last for years by investing in your biggest purchase: your home. Now is perfect time to update your home's furnace and air conditioning. This week only we have a special offer for our premium clients. The first 50 furnace and AC combo installations scheduled and completed will receive a PlayStation 5. So call us today to learn more and book your appointment today at 801-997-9591. That's 801-997-9591, and you have an awesome, great day.”^[35]

Plaintiff estimates this class could consist of up to 4,999 members.^[36]

All Hours filed its Response in Opposition to Plaintiff's Motion on June 21, 2022,^[37] and Adler filed her Reply on July 12, 2022.^[38] The court held oral argument on September 27, 2022.^[39]

LEGAL STANDARD

Class actions are “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.”^[40] A class action allows one or more plaintiffs to file claims on behalf of a larger group under circumstances where the named plaintiff “possess[es] the same interest and suffer[s] the same injury” as the rest of the class.^[41] To justify this shift from the standard rule, a party seeking certification must satisfy the elements of Federal Rule of Civil Procedure 23(a).^[42] Rule 23, however, “does not set forth a mere pleading standard.”^[43] Rather, as the party seeking class certification, Plaintiff has the burden of “affirmatively demonstrat[ing] compliance with Rule 23.”^[44] The “decision whether to grant or deny class certification involves intensely practical considerations . . . and therefore belongs within the discretion of the trial court.”^[45] The court should certify a class only if, “after rigorous analysis,” it concludes “that the prerequisites of Rule 23[] have been satisfied.”^[46]

Pursuant to Federal Rule 23(a), individuals may litigate on behalf of a class only if:

(1) the class is so numerous that joinder of all members is impracticable (numerosity);

(2) there are questions of law or fact common to the class (commonality);

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and

(4) the representative parties will fairly and adequately protect the interests of the class (adequacy).^[47]

A party seeking class certification under Rule 23 must demonstrate that all four requirements are clearly met.^[48] Once a party establishes all four requirements, the party must then show that the suit is maintainable as a class action under “one of the three categories of suits set forth in Rule 23(b).”^[49] Here, Adler seeks certification under Rule 23(b)(3) which requires the court to find that: “ [1] questions of law or fact common to class members predominate over any questions affecting only individual members [predominance], and that [2] a class action is superior to other available methods for fairly and efficiently adjudicating the controversy [superiority].”^[50]

DISCUSSION

The court first addresses the Rule 23(a) requirements, before turning to Rule 23(b)(3). To obtain class certification under Rule 23(a), Adler must show numerosity, commonality typicality and adequacy.^[51] For the reasons stated, the court concludes that Adler satisfies her burden to certify a class more narrowly defined than the one she...