Andrew Thomasson v. Gc Services Limited Partnershi , 539 F. App'x 809 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW T. THOMASSON, on behalf of No. 11-56100
himself and all others similarly situated;
REBECCA J. THOMASSON, on behalf of D.C. No. 3:05-cv-00940-JAH-CAB
themselves and all others similarly
situated,
MEMORANDUM*
Plaintiffs - Appellees,
v.
GC SERVICES LIMITED
PARTNERSHIP,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted August 7, 2013
Pasadena, California
Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.
Defendant GC Services Limited Partnership appeals the district court’s
decision to certify a class comprising Plaintiffs Andrew and Rebecca Thomasson
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and 412 individuals whose telephone calls with Defendant’s employees were
monitored, allegedly without warning or consent. We granted Defendant’s petition
for interlocutory review pursuant to Federal Rule of Civil Procedure 23(f). We
review a district court’s class certification determination for an abuse of discretion.
Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1018 (9th Cir. 2011). We reverse.
Class certification is proper only if Plaintiffs establish that the four
prerequisites of Federal Rule of Civil Procedure 23(a) apply to the class they seek
to certify. Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012).
Central to our decision is Rule 23(a)’s commonality requirement, which provides
that one or more questions of law or fact must be common to the class. Fed. R. Civ.
P. 23(a). To satisfy commonality, there must be significant proof that the entire
class suffered a common injury. Evon v. Law Offices of Sidney Mickell, 688 F.3d
1015, 1029 (9th Cir. 2012). The common injury must be connected to the specific
claim for relief. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir.
2011). In addition, as Plaintiffs propose certification under Rule 23(b)(3), the
common questions must predominate over individual questions.
Defendant argues that Plaintiffs have not established significant proof that
Defendant acted uniformly across the class and thus there is no common contention
2
that is capable of classwide resolution. See Wal-Mart Stores, Inc. v. Dukes, 131 S.
Ct. 2541, 2551 (2011). We agree.
Plaintiffs allege that Defendant violated the Fair Debt Collection Practices
Act, 15 U.S.C. §§ 1692–1692p (2006), specifically 15 U.S.C. § 1692(e), by failing
to warn call members that their calls may be monitored, which, Plaintiffs allege,
caused people to reveal financial information. To establish the claim at issue here
would require an individualized inquiry into hundreds of phone calls in order to
determine whether and when any warning was given in each call. In the face of the
evidence to the contrary submitted by Defendant, Plaintiffs did not and cannot
establish that Defendant acted uniformly as to each member of the class by relying
on 18 anecdotal reports of individual telephone calls. See Wal-Mart, 131 S. Ct. at
2553 (holding that 120 anecdotal reports did not constitute significant proof
establishing a uniform policy).
That the class comprises individuals all of whom participated in telephone
calls monitored by Defendant does not satisfy the commonality requirement.1 See
Ellis, 657 F.3d at 981 (holding that plaintiffs’ commonality must connect to their
1
All except Plaintiffs, that is. Because the failure to satisfy commonality
defeats class certification, we do not address Defendant’s other challenges to the
class, including whether Plaintiffs’ claims are typical of the class in light of the fact
that there is no evidence that the calls of the proposed class representatives were
actually monitored.
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claim for class relief). Nor can a class proceed merely because it asks a common
legal question. See id. (“[I]t is insufficient to merely allege any common
question.”). Because this class would necessarily require an individualized inquiry
into each telephone call with Defendant, it does not generate a common contention,
let alone one that predominates, of such a nature that “determination of [the
contention’s] truth or falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551; see also Local
Joint Exec. Trust Fund v. Las Vegas Sands, 244 F.3d 1152, 1161 (9th Cir. 2001)
(holding that the factual record was sufficiently developed to evaluate whether
Rule 23 requirements had been met without the need for remand on that issue).
Accordingly, this class cannot be certified. We reverse and remand with
instructions to de-certify the class.
REVERSED and REMANDED.
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