United States District Court, S.D. New York
MEGHAN GEORGE, on behalf of herself and all others similarly situated, Plaintiff,
SHAMROCK SALOON II LLC, doing business as CALICO JACK'S CANTINA; BLITZ MARKETING, LLC; JOHN L. SULLIVAN; and DOES 1 THROUGH 20 inclusive, and each of them, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
ABRAMS, UNITED STATES DISTRICT COURT JUDGE:
on behalf of herself and others similarly situated, brings
this action against Defendants Shamrock Saloon II LLC, doing
business as Calico Jack's Cantina ("Calico
Jack's"), Blitz Marketing, LLC, John. L. Sullivan,
and Does 1 through 20. She alleges that Defendants violated
the Telephone Consumer Protection Act ("TCPA"), 47
U.S.C. § 227 et seq., by sending dozens of text
messages advertising events and specials at Calico Jack's
to her cell phone number without her consent using an
automated telephone dialing system ("ATDS").
Plaintiff moved for an order certifying a class pursuant to
Federal Rule of Civil Procedure 23.
the Court is Magistrate Judge Pitman's Report and
Recommendation ("Report"), dated August 7, 2019,
recommending that the Court grant Plaintiffs motion.
Specifically, the Report recommends that the Court certify a
class "consisting of the 67, 630 individuals (1) to whom
defendants sent promotional text messages between March 26,
2015 and September 1, 2017 using an automated dialing system
and (2) from whom defendants cannot affirmatively show that
they received prior express written consent to receive such
text messages." Rpt. at 10.
August 21, Defendants filed their objections to the Report.
Plaintiff responded on September 25. The Court assumes the
parties' familiarity with the facts, as outlined in the
Report. After reviewing the Report and objections, the Court
adopts Judge Pitman's well-reasoned recommendation in its
entirety and grants Plaintiffs motion to certify the class.
magistrate judge issues a report and recommendation, the
district court "may accept, reject, or modify, in whole
or in part, the findings or recommendations made
[therein]." 28 U.S.C. § 636(b)(1)(C). "When a
timely and specific objection to a report and recommendation
is made, the Court reviews de novo the portion of
the report and recommendation to which the party
objects." Tagliaferri v. United States, No.
17-CV-3026 (RA), 2019 WL 498361, at *1 (S.D.N.Y. Feb. 8,
2019); see also Time Square Food Imps. LLC v.
Philbin, No. 12-CV-9101 (PAE), 2014 WL 521242, at *2
(S.D.N.Y. Feb. 10, 2014) (requiring objections to be
"specific and clearly aimed at particular findings in
the magistrate judge's report"). Portions of a
report not subject to a proper objection are reviewed for
clear error. See Razzoli v. Fed. Bureau of Prisons,
No. 12-CV-3774 (LAP), 2014 WL 2440771, at *5 (S.D.N.Y. May
30, 2014). "[T]o the extent.. . that the party makes
only conclusory or general arguments, or simply reiterates
the original arguments, the Court will review the [report and
recommendation] strictly for clear error." IndyMac
Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No.
07-CV-6865 (LTS), 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3,
granting a class certification motion - as is the
subject of Judge Pitman's Report -"a court must
ensure that the requirements of Rule 23(a) and (b) have been
met." Denney v. Deutsche Bank AG, 443
F.3d 253, 270 (2d Cir. 2006). Rule 23(a) has four
prerequisites: numerosity, commonality, typicality, and
adequacy of representation. See Fed. R. Civ. P.
23(a). "[A]ctual, not presumed, conformance with Rule
23(a) remains ... indispensable." General Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 160 (1982). "If the
Rule 23(a) criteria are satisfied, an action may be
maintained as a class action only if it also qualifies under
at least one of the categories provided in Rule 23(b)."
Levitt v. J.P. Morgan Sec, Inc., 710 F.3d 454, 464
(2d Cir. 2013). As relevant here, Rule 23(b)(3) provides
"two additional requirements": "predominance,
i.e., law or fact questions common to the class
predominate over questions affecting individual members, and
superiority, i.e., class action is superior to other
methods." In re Pub. Offerings Sec. Litig., 471
F.3d 24, 32 (2d Cir. 2006). The party seeking certification
must prove these requirements by a preponderance of the
evidence. See Teamsters Local 445 Freight Div. Pension
Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir.
timely raised three objections to the Report. Two of the
objections are new arguments against class certification that
were not presented to Judge Pitman. The third objection
reiterates an argument mat Defendants made in their
underlying brief opposing class certification and was
addressed by Judge Pitman. For reasons explained below, the
Court does not consider Defendants' first two objections,
reviews the third objection for clear error, and evaluates
the remainder of Judge Pitman's Rule 23 findings, to
which Defendants did not object, also for clear error.
Defendants' Objections to the Report
Two Newly Raised Arguments Against Class
a party may raise a new legal argument... for the first time
in objections to [a magistrate judge's report and
recommendation] has not yet been decided in this
Circuit." Levy v. Young Adult Inst.,
Inc., 103 F.Supp.3d 426, 433 (S.D.N.Y. 2015). As such,
courts in this circuit address this issue in one of two ways.
Some courts hold that "new arguments and factual
assertions cannot properly be raised for the first time in
objections to the R&R, and indeed may not be deemed
objections at all." Tarafa v. Arms, No.
10-CV-3870 (AJN), 2013 WL 3789089, at *2 (S.D.N.Y. July 18,
2013); see also Cabrera v. Schafer, No. 12-CV-6323,
2017 WL 1162183, at *2 (E.D.N.Y. Mar. 27, 2017). The
reasoning is that reviewing arguments for the first time at
this late stage "would negate efficiencies gained
through the Magistrates Act and would permit litigants to
change tactics after the issuance of an R&R."
Amadasu v. Ngati, No. 05-CV-2585 (RRM), 2012 WL
3930386, at *5 (E.D.N.Y. Sept. 9, 2012). Other courts
consider six factors in determining whether to exercise their
discretion and address a newly-raised argument:
(1) the reason for the litigant's previous failure to
raise the new legal argument; (2) whether an intervening case
or statute has changed the state of the law; (3) whether the
new issue is a pure issue of law for which no additional
fact-finding is required; (4) whether the resolution of the
new legal issue is not open to serious question; (5) whether
efficiency and fairness militate in favor or against
consideration of the new argument; and (6) whether manifest
injustice will result if the new argument is not considered.
Parks v. Comm'r of Soc. Sec., No. 15-CV-6470
(ER), 2017 WL 3016946, at *3 (S.D.N.Y. July 17, 2017).
their objections to the Report, Defendants challenge
Plaintiffs expert's findings for the first time. With
full access to Defendants' Call Fire account (through
which Defendants store collected phone numbers and draft and
schedule mass text message promotional campaigns), the expert
found that 67, 630 unique cell phone numbers received text
messages between March 26, 2015 and September 1, 2017 from
Defendants without consent provided "in the handwritten
sheets completed by customers at the restaurant... [or] on
the website content list." Expert Rpt. Iflf 55.
Furthermore, before Judge Pitman, "both sides appear[ed]
to agree that [Defendants' text messages contained
'advertisements' as defined by the FCC." Rpt. at
7 n.l. 67, 630 was thus proposed - and adopted - as the scope
of the class.
however, Defendants claim that they never agreed that all 67,
630 individuals received messages with an advertisement.
Instead, "absolutely ... not conced[ing] that every
single text that was sent using the Call Fire platform ...
qualify as 'advertisements' under the TCPA,"
they assert that only those individuals on their General
Mailing List - a number about half the size of the proposed
class - received text messages with an advertisement.
Defs.' Obj. at 16. Defendants, therefore, contend that
the Report erred in "conclud[ing] that there were 67,
630 individuals who received the text message promotions sent
to Plaintiff between March 26, 2015 and September 1,
2017." Id.; see also Id. at 8 ("[T]he
discrepancy between the actual number of individuals who were
on the General Mailing List and the number asserted by Hansen
was," according to Defendants, "due to Hansen's
inclusion in all contact numbers - on any list -
within the Call Fire database.").
despite the fact that the expert report was available to
Defendants prior to and during initial briefing, Defendants
never before questioned the expert's findings or whether
the text messages included an advertisement. Nor did
Defendants' 30(b)(6) witness, in her deposition, ever
address this alleged distinction between individuals on the
General Mailing List and other lists. Notably, Plaintiffs
reply brief to Defendants' underlying opposition brief
even noted that "Defendants do not contest the
numbers." Pl.'s Obj. Reply at 3. It is, therefore,
unclear to the Court why Defendants did not previously raise
this if the "distinction is [as] important" as they
now assert. Defs.' Obj. at 6. This is particularly so
given that Defendants agreed to give Plaintiffs expert full
access to their Call Fire account and stipulated to the
authenticity of that information in order to avoid a second
30(b)(6) deposition. See Dkt. 56 (Stipulation &
Order Regarding the Authenticity of Defendants' Call Fire
second new argument is that they do not need to prove
"prior express written consent" with documentary
evidence because witness testimony is sufficient. Defendants
primarily cite Pamela Killian's 30(b)(6) deposition, in
which she testified that Defendants obtained customers'
cell phone numbers via only two methods: sign-up sheets
circulated in the bar and their website. Relying on a single
case from the Western District of Ohio, Defendants now claim
this testimony is sufficient to establish consent.
See Defs.' Obj. at 21-22 (citing Sawyer v.
KRS Biotechnology Inc., No. 16-CV-550, 2018 WL 2425780
(W.D. Ohio May 30, 2018)). Defendants, however, did not
previously argue that relying solely on witness testimony was
adequate proof, perhaps because Ms. Killian testified that
she had never personally used Call Fire and thus offered
little insight into Defendants' messaging. See
Killian Dep. 34:14-17.
the Court takes no position on whether a new argument first
raised in objections to a magistrate judge's report and
recommendation can ever be considered. Here, even applying
the six-factor test used by some courts, Defendants' two
new arguments against class certification do not warrant
review. Defendants could have raised each of these arguments
in their underlying briefing. They have not explained why
they did not so. Notably, neither argument relies on
intervening law or evidence. Moreover, Defendants'
argument regarding the expert report would require additional
fact-finding about the text messages sent by Call Fire during
the proposed class period. Because the parties have engaged
in discovery after which Judge Pitman issued a detailed
Report, neither "efficiency [nor] fairness militate in
favor ... [of] consideration of the new argument."
Parks, 2017 WL 3016946, at *3. To consider either
now "would negate efficiencies gained through the
Magistrates Act and ... permit [Defendants] to change tactics
after the issuance of [the] R&R." Amadasu,
2012 WL 3930386, at *5 (citation omitted).
these arguments "may not be deemed objections at
all." 3 W. 16th St., LLC v. Commonwealth Land Title
Ins. Co., No. 18-CV-1914 (AT), 2019 WL ...