Wilcox v. Swapp, : 2:17-CV-275-RMP
| Decision Date | 25 January 2019 |
| Docket Number | NO: 2:17-CV-275-RMP,: 2:17-CV-275-RMP |
| Court | U.S. District Court — District of Washington |
| Parties | JADE WILCOX on behalf of herself and all others similarly situation, Plaintiff, v. JAMES CRAIG SWAPP, individually; and SWAPP LAW, PLLC, doing business as Craig Swapp and Associates, Defendants. |
BEFORE THE COURT is Plaintiff Jade Wilcox's Motion for Class Certification, ECF No. 61. Ms. Wilcox seeks to certify a plaintiff class of drivers whose personal information was obtained and used by Defendants James Craig Swapp and Swapp Law PLLC (collectively, "Defendants") through their practice of purchasing Police Traffic Collision Reports ("PTCRs") created with motor vehicle records between September of 2013 and June of 2017. Id. A hearing was held on this motion on December 13, 2018. Ms. Wilcox was represented by Robert Joseph Barton, Thomas Jarrard, and Marcus Sweetser. Defendants were represented by Barbara Duffy and Ryan McBride. The Court has considered the parties' arguments, briefing, and the record, and is fully informed.
The following are facts alleged in Ms. Wilcox's first amended complaint, ECF No. 69. Following car accidents in Washington, the Washington State Patrol ("WSP") prepares PTCRs using a standardized collision report form. Id. at 8. Before this Court issued a preliminary injunction in the Batiste case requiring the WSP to institute procedures to redact personal information, the WSP would sell these unredacted records to any third party who would ask and pay for them.1 Id.
Ms. Wilcox claims that the PTCRs are prepared using a software called SECTOR. ECF No. 69 at 10. SECTOR allows officers to scan the bar code on a driver's license or a vehicle registration to auto-populate the PTCR form with a driver's personal information. Id. The data are placed on the bar codes by the Washington State Department of Licensing ("DOL") when the DOL creates the licenses and registrations. Id. The information scanned from a driver's license's bar code includes a driver's name, address, license number, and date of birth,among other things. Id. at 10-11. The information scanned from a motor vehicle registration's bar code includes a driver's name and home address, as well as information about the driver's vehicle. Id.
Ms. Wilcox alleges that Defendants purchased more than 10,000 of these PTCRs from the WSP between 2013 and 2017. ECF No. 69 at 13. Defendants would then use the personal information on the PTCRs to send letters and pamphlets to the persons involved in the accidents to solicit clients for Defendants' automobile personal injury practice. Id. at 15. The letters would contain Defendant Craig Swapp's signature. Id.
Ms. Wilcox claims that she was involved in two separate car accidents on August 1, 2015, and on July 11, 2016. ECF No. 69 at 17-18. She alleges that Defendants purchased the PTCRs created as a result of these accidents. Id. at 18. Ms. Wilcox alleges that Defendants sent her a letter advertising their services on July 14, 2016, using Plaintiff's personal information gleaned from her Collision Reports. Id. The letter was signed by Defendant Craig Swapp. Id.
Based on Defendants' conduct, Ms. Wilcox alleges that Defendants violated the DPPA each time they obtained and used class members' personal information to solicit clients for Defendants' automobile injury practice. ECF No. 69. The DPPA "sets forth the three elements giving rise to liability, i.e., that a defendant (1) knowingly obtained, disclosed or used personal information, (2) from a motorvehicle record, (3) for a purpose not permitted." Howard v. Criminal Info. Servs., Inc., 654 F.3d 887, 890-91 (9th Cir. 2011) (quoting Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King and Stevens, P.A., 525 F.3d 1107, 1111 (11th Cir. 2008)).
Ms. Wilcox submits the following proposed class definition to be certified by the Court:
All drivers identified in Police Traffic Collision Reports whose Personal Information, as defined by the DPPA, was derived from a Department of Licensing record (e.g. license, registration or database) and the Report was obtained by the Swapp Law Firm (d/b/a Craig Swapp & Associates) or Mr. Swapp from the Washington State Patrol between September 1, 2013 and June 23, 2017.
ECF No. 61 at 10. The proposed class would exclude Defendants' current and former clients; individuals identified on the same PTCRs as Defendants' clients; individuals who provided Defendants written consent to obtain and use their personal information; employees of and attorneys for Defendants and their immediate families; and the presiding judge and anyone working in the presiding judge's chambers and their families. Id.
To be certified, a proposed class "must meet the four threshold requirements of Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy of representation." Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9thCir. 2013). "[C]ertification is proper only if 'the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied . . . .'" Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). The putative class also must comply with Rule 23(b), which defines three types of classes. Id.
Although class certification often requires some consideration of the underlying claims, Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013).
Plaintiffs first must establish that "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). This condition "requires examination of the specific facts of each case and imposes no absolute limitations." Gen. Tel. Co. of the Nw. v. E.E.O.C., 446 U.S. 318, 330 (1980).
Defendants do not dispute numerosity. See ECF No. 85. The Court finds that Ms. Wilcox has proven the numerosity element of Rule 23(a).
The second prerequisite to certification is that "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Ms. Wilcox argues that three questions are common to the class. ECF No. 61 at 18. Defendants argue that the questions are not so common as to be answered the same across the entire class. ECF No. 85 at 18.
A competently-crafted class complaint always raises common questions, so "commonality requires that the class members' claims 'depend upon a common contention' such that 'determination of its truth or falsity will resolve an issue that is central to the validity of each [claim] in one stroke.'" Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012) (quoting Wal-Mart, 564 U.S. at 350). The plaintiff must demonstrate that the class members have suffered the same injury in the same way. Wal-Mart, 564 U.S. at 349-50. "This does not, however, mean that every question of law or fact must be common to the class; all that Rule 23(a)(2) requires is 'a single significant question of law or fact.'" Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Mazza, 666 F.3d at 589) (emphasis in original).
Ms. Wilcox presents three potential common questions in her motion for class certification: (1) whether information on the PTCRs was derived from motor vehicle records; (2) whether Defendants knowingly obtained the class members' personal information; and (3) whether the information was obtained for apermissible purpose under the DPPA. ECF No. 61 at 18. In response, Defendants argue that these questions might be common to the class, but that they cannot be answered in a single stroke. ECF No. 85 at 19.
Defendants argued in their motion to dismiss that the answer to the first question would be dispositive of the class action complaint, which supports the conclusion that the first question is common to the class. ECF No. 108. The second question is equally common because Ms. Wilcox alleges, and Defendants do not dispute, that Defendants purchased all PTCRs in the same way. ECF No. 61-7 at 15-16. Last, because the PTCRs were all purchased to solicit clientele for Defendants, the third question is common to the entire class as well. For these reasons, the Court finds that Ms. Wilcox has presented questions common to the entire class and has satisfied the commonality requirement of Rule 23(a).
The next prerequisite for certifying a putative class is that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). Ms. Wilcox argues that her claim against Defendants is typical of the class members' claims against Defendants because her injuries arose from the same course of conduct that created the class members' injuries: Defendants' purchasing of PTCRs that contained drivers' personal information. ECF No. 61 at 20. Defendants argue that Ms. Wilcox's PTCRs were created differently from the typical class member's PTCR, and that Ms. Wilcox'sdifferent versions of the facts in her case makes her claims atypical of the class. ECF No. 85 at 20.
"The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class." Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). "Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought." Id. (internal citation and quotation marks omitted). "We do not insist that the named plaintiffs' injuries be identical with those of the...
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