McCurley v. Royal Seas Cruises, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 JOHN MCCURLEY, DAN Case No. 17-cv-00986-BAS-AGS 11 DEFOREST, individually and on behalf of all others similarly situated, ORDER: 12 Plaintiffs, (1) GRANTING PLAINTIFFS’ 13 MOTION TO DECERTIFY IN v. PART [ECF No. 132]; 14 ROYAL SEA CRUISES, INC, AND 15 Defendant. (2) DENYING DEFENDANT’S 16 MOTION TO DECERTIFY [ECF No. 143] 17 18 In a lengthy and detailed opinion, the Court previously certified both a primary 19 class, as well as a narrowed subclass. (ECF No. 87.) Plaintiffs now move to decertify the 20 primary class and proceed solely on the subclass. (Plfs.’ Mot. to Decertify in Part and 21 Am. Order Re: Class Notice as to the Subclass (“Plf.’s Mot to Decertify”), ECF No. 132.) 22 Defendant opposes (ECF No. 152), and Plaintiffs reply (ECF No. 162.) Defendant moves 23 to decertify the subclass as well. (Def.’s Mot. to Decertify, ECF No. 143.) Plaintiffs 24 respond (ECF No. 171), and Defendant replies. (ECF No. 172.) 25 The Court finds this motion suitable for determination on the papers submitted and 26 without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons stated below, the Court 27 GRANTS Plaintiffs’ Motion (ECF No. 132) and DENIES Defendant’s Motion. (ECF 28 No. 143.) 1 2 I. BACKGROUND 3 The Court previously certified a class of: 4 All persons within the United States who received a telephone call (1) from Prospects, DM, Inc. on behalf of Royal Seas Cruises, Inc. (2) on said Class 5 Member’s cellular telephone (3) made through the use of any automatic telephone dialing system or an artificial or prerecorded voice, (4) between 6 November 2016 and December 2017, (5) where such calls were placed for the purpose of marketing, (6) to non-customers of Royal Seas Cruises, Inc. at the 7 time of the calls, and (7) whose cellular telephone number is associated in Prospects, DM’s records with either diabeteshealth.info or 8 www.yourautohealthlifeinsurance.com. 9 (ECF No. 87.) The Court further certified a Transfer Subclass of “[a]ll members of the 10 Class whose call resulted in a Transfer to Royal Seas Cruises, Inc.” (Id.) 11 II. MOTION TO DECERTIFY SUBCLASS 12 Plaintiffs now move to decertify the class in part, leaving only the Transfer 13 Subclass. (ECF No. 132.) Plaintiffs indicate that “neither Defendant’s, nor Prospects 14 DM’s records will permit Plaintiffs to identify which of the numbers called by Prospects 15 DM . . . were called under the Royal Seas Cruises contract.” (Plfs.’ Mot. to Decertify at 16 4–5.) This problem does not apply to the Transfer Subclass, because the individuals in 17 the subclass were actually transferred to Defendant. 18 Although Defendant filed an opposition (ECF No. 152), it does not object to 19 Plaintiffs’ request to the extent Plaintiffs seek decertification of the larger class. Instead, 20 Defendant simply argues that the subclass should be decertified as well. Since that issue 21 will be discussed below and since Defendant does not object to the Plaintiffs’ 22 decertification request, the Court GRANTS Plaintiffs’ request for decertification and will 23 allow Plaintiffs to proceed solely on the Transfer Subclass. 24 III. MOTION TO DECERTIFY ENTIRE CLASS 25 Defendant argues—for a variety of reasons already addressed in the Court’s initial 26 Order granting class certification—that the subclass should also be decertified. (ECF No. 27 143.) 28 1 A district court has broad discretion to revisit class certification throughout the legal 2 proceedings before the court. Armstrong v. Davis, 275 F.3d 849, 872 n. 28 (9th Cir. 2001) 3 (abrogated on other grounds by Johnson v. Calif., 543 U.S. 499 (2005). For instance, a 4 court may alter or amend an order granting class certification before final judgment. Fed. 5 R. Civ. P. 23(c)(1)(C). A district court may also decertify a class at any time. Rodriguez 6 v. West Publishing Co., 563 F.3d 948, 966 (9th Cir. 2009) (citing Gen. Tel. Co. of Sw. v. 7 Falcon, 457 U.S. 147, 160 (1982)). 8 That said, a Motion for Reconsideration merely rehashing arguments already 9 considered and rejected by the Court is a waste of judicial resources. That largely appears 10 to be what Defendant is doing in its instant Motion to Decertify. Notably, the only new 11 evidence presented by Defendant in the Motion for Reconsideration are the declarations 12 already rejected by the Court in its Order granting sanctions against the Defendant. (See 13 ECF No. 190.) 14 As the Court pointed out in its original order, merits arguments are largely 15 inappropriate at the class certification stage. As the parties have filed motions for 16 summary judgment currently pending before the Court, the Court assumes it will address 17 many of these merits arguments when it reaches those motions. Whether Prospects DM 18 made telephone calls with an automatic telephone dialing system or whether there was 19 blanket consent for the calls are issues capable of class resolution. Therefore, for the 20 reasons previously stated by the Court in its Order Certifying the Class in part (ECF No. 21 87), Defendant’s Motion to Decertify (ECF No. 143) is DENIED. 22 IV. CONCLUSION AND ORDER 23 Plaintiff’s Motion to Decertify in part (ECF No. 132) is GRANTED. Defendant’s 24 Motion to Decertify (ECF No. 143) is DENIED. The Subclass of: 25 All persons within the United States who received a telephone call (1) from Prospects, DM, Inc. on behalf of Royal Seas Cruises, Inc. (2) on said Class 26 Member’s cellular telephone (3) made through the use of any automatic telephone dialing system or an artificial or prerecorded voice, (4) between 27 November 2016 and December 2017, (5) where such calls were placed for the purpose of marketing, (6) to non-customers of Royal Seas Cruises, Inc. at the 28 time of the calls, (7) whose cellular telephone number is associated in 1 Prospects, DM’s _ records with either diabeteshealthinfo or www.yourautohealthlifeinsurance.com, and (8) whose call resulted in a 2 Transfer to Royal Seas Cruises. Inc. 3 ||remains certified as a class. Any other class is decertified. 4 IT IS SO ORDERED. 5 ff ‘5 6 || DATED: August 10, 2020 (ipilli.g (Doha 6 1 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _A.