Sherman ex rel. Situated v. Yahoo! Inc.
| Decision Date | 23 September 2015 |
| Docket Number | CASE NO. 13cv0041-GPC-WVG |
| Court | U.S. District Court — Southern District of California |
| Parties | RAFAEL DAVID SHERMAN and SUSAN PATHMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. YAHOO! Inc., Defendant. |
ORDER GRANTING LEAVE TO FILE SURREPLY AND DENYING MOTION FOR CLASS CERTIFICATION
Presently before the Court is Plaintiff Susan Pathman's Motion for Class Certification.1 (ECF No. 121.) Plaintiff's proposed Class consists of:
All persons within the United States who were sent a text message on a telephone number assigned to cellular telephone provider AT&T and/or Cingular, by Defendant, that was substantially similar or identical to the text message described in Paragraph 18 of the First Amended Complaint, between May 1, 2013 and May 31, 2013, and whose cellular telephone number is associated with a Yahoo account.
(ECF No. 121 at 2.) Paragraph 18 of the First Amended Complaint ("FAC") states:
On or about May of 2013, YAHOO sent an unsolicited SPAM text message to Ms. Pathman (on its own accord) that read:
(ECF No. 64 ¶ 18.) This text message will hereinafter be referred to as the "Welcome Message."
Defendant opposed Plaintiff's motion for class certification on May 8, 2015 (ECF No. 129) and Plaintiff filed a reply on May 22, 2015 (ECF No. 138).
In its opposition brief, Defendant relied on two expert reports filed in conjunction with its opposition. (ECF No. 129 (Opposition brief), ECF No. 129-7 (Expert Report of Dr. Debra Aron), ECF No. 129-8 (Expert Report of Dr. Danah Boyd)). Plaintiff objected to these export reports, and to Defendant's reliance on them in its opposition brief, in a Motion for Rule 37(c) Sanctions filed on May 22, 2015. (ECF No. 141-1.) On June 1, 2015, Defendant filed its opposition to Plaintiff's objections.2 (ECF No. 146.)
On May 29, 2015, Defendant filed an ex parte application for leave to file a surreply to Plaintiff's motion for class certification. (ECF No. 144.) Plaintiff opposed this application on June 2, 2015 (ECF No. 147), and Defendant filed a reply brief on June 3, 2015 (ECF No. 148.)
A hearing on Plaintiff's motion was held on June 12, 2015. (ECF No. 150.) At the conclusion of the hearing, the Court afforded the parties an opportunity to file supplemental briefing after Plaintiff had an opportunity depose Dr. Aron and Dr. Boyd. (Id.) The Court set an additional hearing.
On July 10, 2015, Plaintiff filed a supplemental brief. (ECF No. 160.) Defendant filed a reply on July 17, 2015. (ECF No. 176.) The Court held a subsequent hearing on July 24, 2015. (ECF No. 182.)
Having considered the parties' submissions, oral arguments, and the applicable law, the Court DENIES Plaintiff's motion.
This case arises from a text message Plaintiff received from an individual via Yahoo's Mobile SMS Messenger Service ("PC2SMS Service"), which allows registered Yahoo users to send instant messages to mobile devices from their computers through the Yahoo Messenger platform. Specifically, in her FAC Plaintiff alleges that " This message has been termed the "Welcome Message." Plaintiff alleges that this unsolicited text message was sent using an "automatic telephone dialing system" ("ATDS"), as that term is defined by the Telephone Consumer Protection Act (the "TCPA"), 47 U.S.C. § 227 et seq. (Id. ¶ 21.) Plaintiff, individually and on behalf of those similarly situated, claims such messages violate provisions of the TCPA and seeks statutory damages of $500 per negligent violation and up to $1,500 per knowing or willful violation. (Id. ¶¶ 39-46.)
Defendant describes Yahoo Messenger as an instant messaging client that anyone can download and use free of charge by registering as a user with a Yahoo ID. (Decl. of Amir Doron Supp. Yahoo's Opp'n to Class Cert. ("Doron Decl.") ¶ 2, ECF No. 129-2.) A registered Yahoo user can send an instant message to a friend's mobile device using the PC2SMS Service, which converts the instant message into an SMS message so that it can be transmitted to the mobile device. (Id. ¶ 3.) If the recipient wishes to reply from his or her mobile device, he or she can send an SMS message and the Yahoo user will receive it as an instant message. (Id.)
In order to send a text message through the PC2SMS Service, the Yahoo user must either select the recipient's name from the user's Yahoo contact list (assuming that name is associated with a mobile number) or manually input the recipient's mobilenumber in the Yahoo Messenger window. (Decl. of Nitu Choudhary ("Choudhary Decl.") ¶ 7, ECF No. 152-4; Doron Decl. ¶ 7.) Whenever a Yahoo user sends a message using the PC2SMS Service, Yahoo automatically checks a database called the Optin DB to see whether anyone has previously sent a message to that mobile number using the PC2SMS Service. (Choudhary Decl. ¶ 8; Doron Decl. ¶ 7.) If that recipient's mobile number has never before received a text message sent via the PC2SMS Service, then Yahoo automatically appends the Welcome Message to the Yahoo user's message.3,4 (Id.) At the same time, Yahoo saves the new mobile number in the Optin DB portion of the PC2SMS Service, which was created to prevent potential recipients from receiving multiple copies of the Welcome Message within the opt-out period. (Doron Decl. ¶¶ 8-9; Boyajian Decl., Ex. 1 (Doron Depo. 34:21-35:4), ECF No. 134-4.)
When a new user registers for a Yahoo account, they must agree to abide by Yahoo's terms of service. (ECF No. 129 at 8; Andrews Decl. ¶ 3.) According to Yahoo, some of its terms of service agreements over the years have included provisions which expressly provide consent for Yahoo to send text messages to its users. (ECF No. 129 at 8; Andrews Decl. ¶16, Ex. A (Comms ATOS ¶ 2(e), Ex. C (uTOS ¶¶ 2, 24).)
Plaintiff objects to Yahoo relying in its opposition brief on the reports of two expert witnesses (Dr. Aron and Dr. Boyd) who were not previously disclosed during class discovery. (ECF No. 141-1 at 2-3.) By doing so, Plaintiff argues Yahoo denied her the opportunity to depose the experts or otherwise prepare for their testimony. (Id.) Plaintiff asks the Court to strike the Aron and Boyd declarations from the opposition.5 (Id. at 3.)
Rule 26(a) requires parties to disclose the identity of individuals with discoverable information as well as the subject of that information. Fed. R. Civ. P. 26(a)(1). The rule also requires parties to disclose the identity of any retained expert witness and provide a written report. Fed. R. Civ. P. 26(a)(2). If the witness is not a retained expert, the party offering the testimony must disclose the subject matter of the testimony and a summary of the facts and opinions of the testimony. Fed. R. Civ. P. 26(a)(2)(C). Failure to abide by these disclosure requirements may result in exclusion of the evidence pursuant to Rule 37, unless the failure to disclose was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1); Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008), as amended (Sept. 16, 2008).
The Court indicated at the June 12, 2015 hearing, it was inclined to consider the reports. However, in order to allow Plaintiff time to depose both experts and respond to their conclusions, the Court set another hearing and provided time for the parties to file supplemental briefing. In light of these procedural protections, the Court finds that Yahoo's failure to disclose these experts was harmless and DENIES Plaintiff's request to strike the declarations from Yahoo's opposition briefing.
Yahoo requested permission to file a surreply because it contends that Plaintiff raised new arguments in her reply brief and made several misrepresentations and omissions. (ECF No. 144.) Yahoo attached its proposed surreply to its application. (ECF No. 144-2.) Plaintiff objected to Yahoo's characterization of her reply brief and to Yahoo's application for permission to file a surreply. (ECF No. 147.) In her briefing, Plaintiff responded to the issues addressed in Yahoo's surreply. (Id.) Yahoo filed a reply. (ECF No. 148.)
Courts are not obligated to consider arguments first presented in reply briefs. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). However, district courts have broad discretion to do so. Lane v. Dept. of Interior, 523 F.3d 1128, 1140 (9th Cir. 2008) (citing Glenn K. Jackson, Inc. v. Roe, 273 F.3d 1192, 1201-02 (9th Cir. 2001)). A court admitting arguments submitted for the first time in a reply brief should protect the non-moving party against unfair surprises by allowing it an opportunity to respond. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). The court may choose to either "provide oral argument to the non-moving party, or allow the non-moving party to file a sur-reply." Lewis v. Gotham Ins. Co., No. 09CV252 L (POR), 2009 WL 3698028, at *1 (S.D. Cal. Feb. 4, 2010).
Yahoo contends that it must be allowed the opportunity to respond to matters Plaintiff presented for the first time in its reply brief, including Plaintiff's: (1) newly-proposed method of ascertaining a class through a reverse phone number lookup, (2) misrepresentations and omissions, (3) newly-proposed class definition limiting the class to "those users who opened an account prior to being sent the Welcome Message," (4) newly-proposed class definition limiting the class to "those AT&T customers who...
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