Lyngaas v. Curaden AG
| Decision Date | 23 May 2019 |
| Docket Number | Case No. 17-cv-10910 |
| Parties | BRIAN LYNGAAS, D.D.S., individually and as the representative of a class of similarly situated persons, Plaintiff, v. CURADEN AG, et al. Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
In this case, Plaintiff Brian Lyngaas contends that Defendants Curaden AG and Curaden USA Inc. are liable under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, for sending him unsolicited fax advertisements. Lyngaas has moved for summary judgment against both Defendants (Dkt. 62), and seeks to certify a class of similarly-situated individuals (Dkt. 63). He has also filed a motion asking the Court to postpone ruling on his summary judgment motion until the Court has ruled on the class certification motion (Dkt. 68). Curaden AG has also filed for summary judgment (Dkt. 60), and seeks to exclude Lyngaas' expert witness (Dkt. 67). Because oral argument will not aid the decisional process, the motions will be decided based on the parties' briefing. See E.D. Mich. LR 7.1(f)(2); Fed. R. Civ. P. 78(b). For the reasons that follow, the Court (1) denies without prejudice Defendants' motion to exclude Lyngaas' expert witness; (2) grants in part and denies in part Curaden AG's motion for summary judgment;1 (3) denies Lyngaas' motion for summary judgment; (4) grants Lyngaas' motion to certify class; and (5) denies Lyngaas' motion to postpone ruling on his motion for summary judgment.
This case arises out of two faxes received by Plaintiff Brian Lyngaas, a dentist whose practice is located in Livonia, Michigan. Plaintiff's Statement of Material Facts ("PSMF") ¶ 1 (Dkt. 62). On March 8, 2016 and March 28, 2016, Lyngaas received faxes advertising the Curaprox Ultra-Soft CS 5460 toothbrush. Id. ¶ 3. Lyngaas contends that these faxes were sent in violation of the TCPA.
Defendant Curaden AG, a Swiss entity, manufactures toothbrushes, including the Curaprox Ultra-Soft 5460. Id. ¶ 10. The faxes at issue in this case were sent at the direction of its wholly-owned, U.S.-based subsidiary, Defendant Curaden USA, Inc. See id. ¶ 6. Curaden USA employee Diane Hammond created the fax advertisements, both of which state that an order of toothbrushes should be emailed to diane@curaproxusa.com or ordered online at www.curaproxusaprofessional.com. Id. ¶¶ 64-65.
Curaden USA is authorized to promote Curaden AG products, including the Curaprox Ultra-Soft 5460, throughout the United States. Id. ¶¶ 13, 15. Curaden AG authorized Curaden USA to use its trademarks, images, graphics, and pictures when promoting Curaden AG products. Id. ¶ 16. Curaden AG had the right to approve all marketing done by its distributors, Deposition of Clifford zur Nieden, Ex. 1 to Pl. Mot. for Summ. J., at 26 (Dkt. 62-2), but Curaden USA did notneed prior approval from Curaden AG to use its marketing materials, 11/13/2017 Johnson Dep., Ex. 2 to Pl. Mot. for Summ. J., at 43 (Dkt. 62-3).
Curaden USA did not send the faxes itself, but instead paid a company called AdMax Marketing to do so. Komniey Dep., Ex. 3 to Pl. Mot for Summ. J., at PageID.1368, 1373 (Dkt. 62-4). Curaden USA purchased the database and target list that was used in the fax campaigns. PSMF ¶ 66.2 AdMax Marketing, in turn, hired a company called WestFax to send the faxes. Id. ¶ 58.
Chad Komniey, the owner of AdMax Marketing, explained that WestFax is a service provider that has a platform to broadcast faxes. Komniey Dep. at 12, 83-85. To use WestFax's broadcasting service, Komniey would visit WestFax's website, upload the list of numbers to which the faxes would be sent, and schedule the time and date to be sent. Id. at 85. After the faxes were sent, Komniey would receive an email showing the summary of the transmissions. Id. at 86. He would then go to WestFax's website, log into his account, and then download a report that showed which faxes were successful and which failed. Id. at 86-87.
The parties dispute how many of these faxes were successfully sent. Lyngaas' expert, Christopher Lee Howard, opined:
Howard Report, Ex. 12 to Pl. Mot. for Summ. J., at 3 (Dkt. 62-13). By reviewing the reports generated by WestFax, Howard concluded that the faxes were sent to 33,226 recipients on March 8, 2016, and to 32,678 recipients on March 28, 2016. Id.
Lyngaas now seeks to certify a class of individuals who received unsolicited faxes advertising the Curaprox Ultra-Soft CS 5460 in March of 2016, as well as summary judgment against both Defendants.3 Curaden AG also seeks summary judgment, and both Defendants seek to exclude Howard's report.
Defendants seek to exclude the testimony of Lyngaas' expert, Christopher Lee Howard. Howard has worked for over eighteen years as a fax consultant, is a developer of fax software, and has designed and developed fax applications as well as a software modem. Howard Report at 1. Defendants argue that Howard must be excluded because his export report fails to comply with Federal Rule of Civil Procedure 26. Federal Rule 26 provides that an expert report must contain:
Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). Defendants argue that Howard's expert report does not contain his opinions or the bases and reasons for them; the facts he relied upon to draft his report, including the ITU T.30 document he states he relied upon; the list of all publications he has authored in the previous ten years; or a list of cases in which he testified as an expert. Defs. Mot. to Exclude Expert at 3-4.
Howard's report does contain his opinions and the reasons for them - he explains that he examined the lists of fax broadcasts and determined that a fax was successfully transmitted to 33,226 individuals on March 8, 2016 and that another fax was successfully transmitted to 32,678 recipients on March 28, 2016. Howard Report at 3. Howard stated that Id. In his deposition, Howard further explained:
ITUT.30 is the document which describes fax protocol, the signals and information that go between two fax machines in order to communicate those pages. . . . [I]f you understand ITUT.30 protocol and how it works, that message confirmation signal indicates a positive signal from the receiver that it believes that that page was received complete. So there's no question whether or not the recipient got it or not because the recipient confirmed that it did. . . . [T]here's no other way for a fax confirmation to occur. So when you have a summary report that says, you know, 30,000 faxes were received by the recipients, the only way that that could be stated is through the MCF signal.
Howard Dep., Ex. 3 to Defs. Mot. to Exclude Expert, at 32-34 (Dkt. 67-4).
While the report is not deficient for failing to supply opinions, it is deficient in other respects. It is missing ITU T.30, the document upon which Howard relies. It also omits onedeposition, Pl. Resp. to Mot. to Exclude Expert at 14 (Dkt. 72), which was required by Rule 26 (a)(2)(B)(v). Regarding the omission of certain blogs, Lyngaas contends that Howard did not need to disclose them because his employer, not Howard, is the "author." Id. at 12. The Court disagrees. Because Howard wrote the blog postings, he is the "author" under a common understanding of the word. See Author, Merriam-Webster, available at www.merriam-webster.com/disctionary/author ("the writer of a literary work (such as a book)"). Thus, his report falls short of the Rule 26(a)(2)(B)(iv) requirement as well.
Lyngaas urges the Court not to exclude Howard's report entirely, but instead to re-open his deposition. The Court agrees that this is appropriate, and will re-open discovery for this limited purpose. Howard must furnish to Defendants a revised export report no later than June 3, 2019 containing the omitted information; if Defendants wish, they may take Howard's deposition no later than June 13, 2019. Defendants' motion is therefore denied without prejudice.
A motion for summary judgment under Federal Rule of Civil Procedure 56 shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to...
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