Wisniewski v. Rodale, Inc., Civ.A. 03-742.
| Decision Date | 20 December 2005 |
| Docket Number | No. Civ.A. 03-742.,Civ.A. 03-742. |
| Parties | David WISNIEWSKI Plaintiff v. RODALE, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Errol C. Deans, Jr., Paul A. McGinley, Susan Ellis Wild, Gross McGinley Labarre & Eaton LLP, Allentown, PA, Gregory A. Clarick, Manatt Phelps & Phillips LLP, New York City, for Defendant.
Plaintiff and class representative David Wisniewski alleges that magazine and book publisher Rodale, Inc. violated a federal statute and various state laws when it enrolled him and others in its annual book program. Rodale has moved for summary judgment, arguing, in part, that the federal statute provides no private right of action. I agree and dismiss Wisniewski's federal claim. I also dismiss Wisniewski's state law claims for want of jurisdiction.
Then-Plaintiff Michael Karnuth began this litigation on February 25, 2003, alleging that simply because he was a subscriber to Rodale's "Men's Health" magazine, Defendant sent him books he had never ordered — Sex, a Man's Guide (in 2000), Report 2001: A Man's Guide to Women (in 2001), and Report 2002: A Man's Guide to Women (in 2002) — and then demanded payment. (Compl. at ¶¶ 1, 12-17). Karnuth charged that Rodale had violated the Postal Reorganization Act, Pennsylvania's Unsolicited Merchandise Act, Pennsylvania's Unfair Trade Practices and Consumer Protection Law, and unnamed provisions from other states. See 39 U.S.C. § 3009 (2004), 73 Pa. Cons.Stat. §§ 2001, 201-02 et seq. This Court had jurisdiction to hear Plaintiff's § 3009 claim pursuant to 28 U.S.C. § 1331 and the state law claims pursuant to 28 U.S.C. § 1367.
Rodale moved to dismiss the Pennsylvania state law claims only; the Honorable Franklin Van Antwerpen denied the Motion. See Order of May 16, 2003, at n. 1 (Doc. No. 9) (Van Antwerpen, J.).
Karnuth next moved to certify his Complaint as a class action on behalf of "all persons who, without prior consent, received books and other products from Defendant and an invoice for payment for such books and products," as well as a subclass of "all members of the class who paid, in part or whole, the invoices for such books and products for personal, family, or household purposes." (Id. at ¶ 15). Although Karnuth initially alleged that he had not solicited any of the Rodale publications, discovery revealed that this was false: he had ordered and paid for at least one of the books. Judge Van Antwerpen observed that if Karnuth had indeed ordered the Rodale books, "then his claims will be quite distinct than other members of the proposed class, assuming he has any claims at all." See Karnuth v. Rodale, Inc., 2003 U.S. Dist. LEXIS 12095, *10 (E.D.Pa. July 2, 2003). Accordingly, Judge Van Antwerpen denied class certification without prejudice. See id. at *8-*10.
The case was reassigned to me on July 16, 2004. Karnuth then filed an Amended Complaint and renewed his Motion for Class Certification. The Amended Complaint included allegations that differed materially from those in Karnuth's Original Complaint. Karnuth now alleged that in September 2000, he completed and returned to Rodale a "One Shot Order Card," allowing him to preview Sex. A Man's Guide and enrolling him in Karnuth's annual book preview program. (Amended Compl. at ¶¶ 7-8). If Karnuth did not return the book (at Rodale's expense) within twenty-one days, he would be required to pay for it. Karnuth alleged that he kept Sex: A Man's Guide and sent a $39.65 check to Rodale in full payment. Karnuth also alleged that as part of its preview program, Rodale sent him two additional books: Report 2001: A Man's Guide to Women (in 2001) and Report 2002: A Man's Guide to Women (in 2002).
Karnuth's new allegations directly contradicted his earlier allegation that "[a]t no time either before or after Defendant sent Plaintiff and the class the 2001 and 2002 unsolicited books did Plaintiff request or consent to the mailing or sending to him of the subject books." (Compl. at ¶ 24). In light of that contradiction, I reasoned that, as Judge Van Antwerpen anticipated, Karnuth had unique credibility problems that would prevent him from adequately protecting the interests of the class. See Karnuth v. Rodale, Inc., 2005 WL 747251, *3, 2005 U.S. Dist. LEXIS 5241, *8 (E.D.Pa. Mar. 30, 2005). I therefore denied the Class Certification Motion without prejudice and allowed Plaintiff's counsel to substitute a new class representative. Id.; cf. N.T. Mar. 7, 2005 at 45:22-25 ().
On April 13, 2005, Plaintiff's counsel filed a notice substituting David Wisniewski as the new putative class representative. Wisniewski acknowledged that he, too, had returned the "One Shot Order Card" and had thus received Sex: A Man's Guide. Wisniewski further alleged that he did not understand that by returning the card, he enrolled in Rodale's annual book preview program. Thus, he alleged that he did not order the books Rodale subsequently sent him — the same Report 2001 and Report 2002 volumes received by Karnuth. He nonetheless paid for them to preserve his credit rating. (Notice of Substitution at ¶¶ 2, 4-5); (Amended Notice of Substitution at ¶¶ 4-7). Like Karnuth, Wisniewski sought to represent "all persons who are or have been enrolled in Rodale's Annual Programs and received books from Rodale and invoices for payment of such books, within six years preceding the filing of Plaintiff's Class Action Complaint." (Amended Compl. at ¶ 36). In addition, he sought to certify a subclass of "all members of the class who paid, in part or whole, the invoices for such books for personal, family or household purposes." Id.
At the class certification stage, it was apparent that Plaintiff's theories of liability were problematic. See Karnuth v. Rodale, 2005 WL 1683605, at *3, 2005 U.S. Dist. LEXIS 14426, at *9-10 (E.D.Pa. July 18, 2005). For instance, Wisniewski admitted in his deposition that he had read very little of the information Rodale sent to him. Naturally, Rodale questioned how Wisniewski could credibly allege that the "One Shot Order Card" misled him if he had not read it. (N.T. of Oct. 24, 2005, at 14:6-14, 24:13-25:23). Wisniewski responded that whether or not he read the card was immaterial. In his view, the Federal Trade Commission's Prenotification Negative Option Rule sets forth an objective disclosure standard — enforceable through 39 U.S.C. § 3009 — that Rodale's Order Card did not meet. Id. at 16:2-19:25; see 16 C.F.R. § 425.1.
As I noted in my previous opinion, I could find no authority linking the FTC Rule and the Postal Reorganization Act. See Karnuth, 2005 WL 1683605, at *3, 2005 U.S. Dist. LEXIS 14426, at *9. As I also noted, however, I could not then consider this or any other contention that went to the merits of Wisniewski's Amended Complaint. See Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 166-67 (3d Cir.2001) (). Accordingly, I granted Wisniewski's Motion for Class Certification on his federal claim. Karnuth, 2005 WL 1683605, at *3-4, 2005 U.S. Dist. LEXIS 14426, at *15. Because Plaintiff had failed to analyze the distinctions among the various unnamed state statutes, I denied certification on his state claims.
The parties agree that my ruling on this Motion for Summary Judgment will bind only the named parties. Accordingly, they have not notified potential class members of the Motion. (N.T. of Oct. 24, 2005, at 22:24-23:18). My ruling on this Motion thus has no preclusive effect on other class members; rather, it can serve only as precedent. Cf. Fed. R. Civ. Proc. 23(c)(1)(B) ().
Upon motion of any party, I may grant summary judgment "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must initially show the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In its review of the record, "the court must give the nonmoving party the benefit of all reasonable inferences." See Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.1995), cert. denied, 515 U.S. 1159, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995). An issue is material only if it could affect the result of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If, after viewing all reasonable inferences in favor of the nonmoving party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). The court's function is not to weigh the evidence and determine the facts, but rather to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
As a threshold matter, Plaintiff argues that the law of the case doctrine compels me to conclude that § 3009 provides a private right of action. See Pl. Mem. in Opp. to Rodale's Mot. for Summ. J. at 2-3. I do not agree.
Rodale initially moved to dismiss Plaintiff's claim under Pennsylvania's Unsolicited Merchandise Act, contending that the UMA does not provide a private right of action. In denying Rodale's Motion, Judge Van Antwerpen cited Kipperman v. Academy Life Ins. Co., in which the Ninth Circuit had found a private right of action under the "analogous federal statute ... 39 U.S.C. § 3009." Order of May 16, 2003, at n. 1 (Doc. No. 9) (Van Antwerpen, J.) (citing 554...
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Wisniewski v. Rodale, Inc.
...on the federal and state claims, agreeing that any ruling would bind only the named parties and not the class. See Wisniewski v. Rodale, 406 F.Supp.2d 550, 553 (E.D.Pa.2005). In December 2005, the District Court dismissed the § 3009 claim on the ground that this provision does not confer an......