McGarry v. Cingular Wireless, LLC

• Decision Date: 24 March 2004
• Docket Number: No. A03A2575.,A03A2575.
• Citation: 599 S.E.2d 34,267 Ga. App. 23
• Parties: McGARRY v. CINGULAR WIRELESS, LLC.
• Court: Georgia Court of Appeals

267 Ga. App. 23

599 S.E.2d 34

267 Ga.App. 23

McGARRY v. CINGULAR WIRELESS, LLC.

No. A03A2575.

Court of Appeals of Georgia.

March 24, 2004.

Reconsideration Denied April 13, 2004.

Holzer, Holzer & Cannon, Corey D. Holzer, Michael I. Fistel, Jr., Christi A. Cannon, Atlanta, for appellant.

Kilpatrick Stockton, Stephen M. Schaetzel, James F. Bogan III, Olivia M. Baratta, Curtis A. Garrett, Jr., Atlanta, for appellee.

Roy E. Barnes, Marc B. Hershovitz, Michael K. Jablonski, Weissman, Nowack, Curry & Wilco, Ned Blumenthal, amici curiae.

ADAMS, Judge.

Jennifer McGarry appeals from the trial court's denial of her motion for class certification in the lawsuit she filed against Cingular Wireless, LLC, alleging violations of the Telephone Consumer Protection Act of 1991, ("TCPA") 47 USC § 227. McGarry sought to certify a class of individuals who had received unsolicited facsimiles advertising Cingular's cellular telephone services.

Cingular is a limited liability company headquartered in Atlanta. McGarry is a Cingular customer residing in Palm Beach County, Florida. Under a "Semi-Non-Exclusive Authorized Distributorship Agreement," Cingular authorized American Cellular, Inc. to offer Cingular's services to consumers in the West Palm Beach-Boca Raton, Florida area. Under this agreement, Cingular authorized American Cellular to use the Cingular name, trademarks and logos to market and sell such services.

In that regard, American Cellular engaged Fax.com, Inc., a facsimile broadcasting company located in California, to disseminate advertisements offering Cingular's services to facsimile machines located in the 305, 561 and 954 area codes between August 22, 2001, and November 14, 2001. American Cellular's November 14, 2001 order to Fax.com requested 200,000 facsimile advertisements promoting services from three companies, Cingular, Voicestream Wireless, and Sprint, to be disseminated at a rate of 10,000 per day, five days per week to facsimile machines in the 561 and 954 area codes in Florida. McGarry received a facsimile advertisement matching this description at her residence in the 561 area code in Delray Beach, Florida, approximately one week later. In addition to advertising the three wireless phone companies, the fax listed American Cellular's name and number, and had a notation indicating that it was sent from a particular number in the 561 area code.

McGarry filed this class action asserting that Cingular's agent, American Cellular, acting through Fax.com transmitted hundreds of thousands of unsolicited facsimile advertisements touting the services of Cingular throughout southern Florida. After the parties engaged in extensive class-related discovery over a five-month period, McGarry moved to certify the following class:

All persons located within the 561, 954 and 305 area codes who received an unsolicited facsimile advertisement, which offered Cingular's cellular phone services, at the direction of Cingular's agent, American Cellular.

The trial court denied the motion for class certification on three grounds. First, the court found that McGarry had failed to prove that the facsimile she received was from Cingular's agents or to establish the origin of the facsimile at all. Thus, she could not show "with any certainty" that she was even a member of the proposed class, which also raised questions as to whether the class members could be identified without difficulty. Second, the trial court determined that McGarry did not fulfill the typicality requirement for a class representative because, as an existing Cingular telephone customer she could be subject to a defense under the TCPA that other members of the class would not face. This issue raised a further question as to whether other members of the class also would be subject to an "established business relationship" defense, requiring individualized inquiries among class members. Third, the trial court found that a Georgia court was "poorly suited" to hear cases brought by class plaintiffs who by definition reside in Florida, and thus the trial court was not the superior forum for hearing this class action. McGarry takes issue with all three of these findings on appeal.

The requirements for certifying a class under OCGA § 9-11-23(a),¹ are defined as follows:

The requirements for class certification are numerosity, commonality and adequacy of representation. Alternatively stated, to certify the class the trial court must find that the class is so numerous as to make it impracticable to bring all members before the court; that the questions of law and fact common to the class members predominate over any individual questions; that the claim of the named plaintiff is typical of the claims of the members of the class; that the named plaintiff and class counsel will adequately represent the interests of the class; and that a class action is superior to other available methods of achieving a fair and efficient adjudication of the controversy.

( Citations and punctuation omitted.) Duffy v. Landings Assn., 254 Ga.App. 506, 507-508(1), 563 S.E.2d 174 (2002). This Court will affirm a trial court's decision applying these factors to a motion for class certification in the absence of an abuse of discretion. Jones v. Douglas County, 262 Ga. 317, 323(2), 418 S.E.2d 19 (1992).

1. McGarry first asserts that the trial court erred in finding that she had failed to prove she was a member of the proposed class. She contends that the trial court mistakenly required her to prove her case-in-chief at the class certification stage.

"In determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of OCGA § 9-11-23(a) have been met." (Citations and punctuation omitted.) Duffy, 254 Ga.App. at 507(1),563 S.E.2d 174. But the U.S. Supreme Court has recognized that "[the c]lass determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." (Citations and punctuation omitted.) Rutstein v. Avis Rent-A-Car Systems, 211 F.3d 1228, 1234(III)(A) (11th Cir.2000). See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 160, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). And in this case, McGarry defined her class to encompass elements of her cause of action, as it includes those who received "unsolicited" facsimiles "at the direction of Cingular's agent, American Cellular." Thus, in order to determine whether class certification was proper, the trial court was required to look at issues that will also be considered in examining the merits of McGarry's claims.

Moreover, McGarry bears the burden of establishing her right to class certification, which includes the burden of demonstrating that she will adequately represent the class. See UNUM Life Ins. Co. of America v. Crutchfield, 256 Ga.App. 582, 568 S.E.2d 767 (2002). This burden necessarily includes a showing that she is a member of the class she seeks to represent.

Here, McGarry presented evidence to show that Cingular authorized American Cellular to market its services in the south Florida area. And she established that American Cellular engaged Fax.com to fax advertisements for Cingular's services to facsimile machines in the 305, 561 and 954 area codes. McGarry also showed that she resides in the 561 area code and that she received an advertisement matching the description of one of the Fax.com advertisements on her home facsimile machine. But the facsimile received by McGarry reflects that it was sent from a certain telephone number in the 561 area code, and Cingular presented evidence showing that that particular telephone number belonged to an individual residence, not to Fax.com or American Cellular.²

The trial court determined that McGarry failed to prove that the number from which she allegedly received her facsimile is a telephone number belonging to Cingular's agents. And the trial court found that, despite five months of discovery, including discovery served directly on Fax.com, McGarry "has offered no proof as to whose number the `sent from' number was, and made no showing that she attempted to avail herself of any discovery from any telephone...