Floyd v. Saratoga Diagnostics, Inc.

Background

Louis Floyd brought a putative class action against Saratoga Diagnostics, Inc. and Thomas Pallone under the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act. Floyd alleged that, on March 12, 2019, the defendants sent him an unsolicited fax advertising continuing medical education seminars. He alleged that he had not given permission or invited the fax and had no prior relationship with the defendants. He further alleged, on information and belief, that the defendants sent the same fax to more than 40 other recipients without permission or invitation.

Neither defendant appeared after being served, and the clerk entered default against both defendants. Floyd moved to certify a class under Federal Rule of Civil Procedure 23(b)(2) or 23(b)(3), to appoint Woodrow & Peluso, LLC as class counsel, and to obtain 120 days of limited third-party discovery.

Class-Certification Standard

Rule 23(a) requires a proposed class to satisfy four requirements: numerosity, common questions, typicality, and adequate representation. Numerosity means that the class is large enough that joining all members in one lawsuit would be impractical. A plaintiff must affirmatively prove compliance with these requirements; allegations alone are not enough. If the Rule 23(a) requirements are met, the plaintiff must also satisfy at least one requirement under Rule 23(b).

Because the defendants had defaulted, the court accepted the complaint’s well-pleaded factual allegations as true. But the court explained that default did not eliminate Floyd’s obligation to provide evidence supporting class certification.

Court’s Analysis

The court addressed only numerosity under Rule 23(a)(1). Floyd argued that the defendants had faxed hundreds or thousands of people. The court found uncertainty in the complaint because one allegation referred to Floyd and more than 40 other recipients, while another said the class numbered in the thousands, without explaining the difference.

The court also found that Floyd had provided no evidence that even one other person received the same fax. In the court’s view, the allegations that hundreds or thousands of people may have received the fax did not affirmatively establish a sufficiently large class. The court compared the case with other defaulted Telephone Consumer Protection Act cases in which plaintiffs had supplied specific evidence, such as online complaints, showing that other people had received the same unwanted communications.

Because Floyd failed to establish numerosity, the court did not reach his arguments concerning the other Rule 23(a) requirements or Rule 23(b). The court also treated the request to appoint Woodrow & Peluso, LLC as class counsel as moot because it denied class certification.

Disposition

The court denied without prejudice Floyd’s motion for class certification. The court explained that the defendants’ failure to appear had hindered Floyd’s ability to conduct discovery about the size of the proposed class. It therefore granted Floyd’s request for 120 days of limited discovery, allowing discovery until September 23, 2021. If Floyd chose to file a renewed class-certification motion, the court required him to do so by October 14, 2021.