LaGuardia v. Designer Brands Inc.
| Decision Date | 14 April 2022 |
| Docket Number | 2:20-cv-2311 |
| Parties | Eric LaGuardia, et al ., Plaintiffs, v. Designer Brands Inc., et al ., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION & ORDER
This is a putative class action, brought under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. Because Defendants did not use an ATDS to send text messages to a putative class, and because Defendants fail to establish that they had an established business relationship (“EBR”) with two of the Plaintiffs, summary judgment (ECF No. 117) is only partially proper. In reaching that determination, the Court also DENIES Plaintiffs' Motion to Exclude the Report of Ken Sponsler (ECF No. 130), DENIES Plaintiffs' request for additional discovery (ECF No. 128), and DENIES Plaintiffs' request for leave to amend (ECF No. 128).
This is the third dispositive motion presented to the Court in this matter. As such, all are well-versed in the case's procedural history and a truncated recitation of the background follows.
Plaintiffs Eric LaGuardia, Sophia Wingate, Lindsay Rucker, and Nicole Austin are California residents. (ECF No. 22 ¶ ¶ 7-11.) Defendant DSW Shoe Warehouse, Inc. sells footwear and is a wholly owned subsidiary of Defendant Designer Brands, Inc. (ECF No. 44 ¶ ¶ 2, 12.) DSW Shoe Warehouse is a Missouri corporation headquartered in Columbus, Ohio. Id. ¶ 12. Designer Brands is an Ohio corporation with headquarters in Columbus. Defendants are collectively referred to as “DSW.”
DSW, using the Oracle Responsys Interact platform (“Responsys”), sent Plaintiffs texts advertising DSW's products without their consent in July and August 2019. DSW sent LaGuardia and Austin one solicitation each after they told DSW to stop, even though they were on the National Do Not Call Registry (“Registry”).
Plaintiffs argue that Responsys has the capacity to: (1) store telephone numbers; (2) generate sequential numbers; (3) dial numbers in sequential order; (4) dial numbers from a list of numbers; (5) dial numbers without human intervention; and (6) schedule the time and date for future transmission of text messages without human involvement. (ECF No. 22 ¶ ¶ 61-66.) Plaintiffs thus contend that DSW's program is an automated telephone dialing system (“ATDS”) as defined in the TCPA.
Count 1 alleges that DSW violated § 227(b)(1)(A)(iii) of the TCPA by willfully and/or knowingly contacting Plaintiffs on their cellular telephones using an ATDS. Id. ¶ ¶ 82-87. Count 2 asserts that DSW violated § 227(c) of the TCPA by sending the texts to LaGuardia and Austin despite the fact that they were on the Registry and by continuing to send the texts after they told DSW to stop. Id. ¶ ¶ 88-91. Plaintiffs seek Fed.R.Civ.P. 23 certification of two classes and one sub-class. Id. ¶ ¶ 71- 72. In addition to class certification, Plaintiffs seek compensatory, statutory punitive, and treble damages; attorney's fees; costs, and an injunction requiring DSW to cease all text “spam” activities. Id. ¶ 6, Prayer for Relief ¶ ¶ 1-6. DSW denies all claims. (ECF No. 44.)
The Court's October 27, 2020 Opinion & Order (ECF No. 93) denied Defendants' Motion for Judgment on the Pleadings. The Court's May 24, 2021 Opinion and Order (ECF No. 133) denied Defendants' subsequent Motion to Dismiss.
Magistrate Judge Vascura's Preliminary Pretrial Order (ECF No. 97) (“Preliminary Order”) established January 15, 2021 as the deadline for DSW to file a summary judgment motion on the “threshold issues” of whether: “(1) . . . the platform used to send the at-issue texts is an ATDS as contemplated under the TCPA and (2) . . . Plaintiffs had EBRs when the at-issue texts were sent.” (ECF No. 97, PageID 1025-26.) The Preliminary Order further set March 8, 2021 as the discovery deadline for those “targeted” issues while noting that “the parties must schedule their discovery in such a way as to require all responses to be served prior to the deadline and must also file any motions relating to discovery within the discovery period.” Id. at 1025. The Preliminary Order scheduled April 5, 2021 as the Plaintiffs' deadline to oppose DSW's Motion for Summary Judgment. Id. at 1026.
Lastly, the Preliminary Order stayed class certification motions until after the threshold issues were resolved. Id. at 1023.
DSW sought, and obtained, two extensions of the dispositive motion deadline. (ECF Nos. 106, 111.) Plaintiffs requested, and received, two extensions of the discovery deadline. (ECF Nos. 120, 123.)
DSW's timely Motion for Summary Judgment is fully briefed. (ECF No. 117.) Plaintiffs' Motion to Exclude the Report of Ken Sponsler, DSW's expert, is likewise ripe. (ECF No. 130.) The Court turns to the latter before addressing the former.
Plaintiffs seek exclusion of Ken Sponsler's opinions on reliability grounds. Sponsler first opines that Responsys “cannot store or produce numbers to be called using a random or sequential number generator and does not dial such numbers” such that Responsys is not an ATDS. (ECF No. 117-1, PageID 1190.) Sponsler secondly opines that Responsys “requires substantial human intervention to send text messages.” (ECF No. 117-2, PageID 1190).
“[U]nder Daubert and its progeny, a party proffering expert testimony must show by a ‘preponderance of proof' that the expert whose testimony is being offered is qualified and will testify to scientific knowledge that will assist the trier of fact in understanding and disposing of relevant issues.” Decker v. GE Healthcare Inc., 770 F.3d 378, 391 (6th Cir. 2014) (citations omitted). Federal R. Evid. 702 pertains to the admissibility of expert testimony and states:
The rule “imposes a special obligation upon a trial judge to ensure that scientific testimony is not only relevant, but reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 137 (1999) (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993)). This basic gatekeeping obligation applies to all expert testimony. Kumho Tire Co., 526 U.S. at 147.
“The trial court's role as a gatekeeper of expert testimony is not meant to serve as a replacement of the adversary system.” European Pensions Mgmt. v. Columbus Life Ins. Co., No. 1:16-cv-542, 2017 U.S. Dist. LEXIS 167671, at *12 (S.D. Ohio Oct. 11, 2017) (Dlott, J.) (citing Burgett v. Troy-Bilt LLC, 579 Fed.Appx. 372, 377 (6th Cir. 2014) (citation omitted)). “[R]ejection of expert testimony is the exception, rather than the rule.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (citation omitted). Accordingly, “Rule 702 should be broadly interpreted on the basis of whether the use of expert testimony will assist the trier of fact.” Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500, 516 (6th Cir. 1998) (citation omitted).
Plaintiffs do not dispute Sponsler's knowledge or experience. Nor do they contest that his ATDS opinion will assist the trier of fact to understand the evidence or determine a fact in issue. Rather, they attack Sponsler's ATDS opinion on reliability grounds. In particular, Plaintiffs argue that his opinion must be excluded because Sponsler “did not conduct a reasonably thorough investigation” such that “his report is unreliable.” (ECF No. 130, PageID 1607.) This equates to a Rule 702(b) reliability challenge.
Daubert identifies several factors addressing a reliability determination: testing, peer review, publication, known or potential rate of error, and general acceptance. Daubert, 509 U.S. at 593-94. “The Daubert factors are neither definitive nor exhaustive and may not apply in every case.” European Pensions Mgmt. v. Columbus Life Ins. Co., No. 1:16-cv-542, 2017 U.S. Dist. LEXIS 167671, at *12-13 (S.D. Ohio Oct. 11, 2017) (Dlott, J.) (citing Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir. 2006)). “Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity.” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012). Those red flags are the source of Plaintiffs' contention that exclusion is warranted.
Prong one of Sponsler's ATDS opinion is that Responsys cannot store telephone numbers “to be called using a random or sequential number generator ....” (ECF No. 117-2, PageID 1190.) Plaintiffs contend that this opinion is unreliable because Sponsler's “report does not detail any document or witness who would have provided him with the information necessary to opine that the Responsys system cannot store phone numbers using a random or sequential number generator.” (ECF No. 130, PageID 1610.)
Plaintiffs are mistaken. The report specifies that he:
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