Opinion
No. 03-742.
July 2, 2003.
MEMORANDUM AND ORDER
Presently before this court is Plaintiff Michael Karnuth's Motion for Class Certification in a class action alleging violations of the Postal Reorganization Act, 39 U.S.C. § 3009, Pennsylvania's Unsolicited Merchandise Act ("UMA"), 73 Pa.Cons.Stat. § 2001, and Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa.Cons.Stat. § 201-2et seq. Plaintiff's motion will be postponed because Plaintiff's allegations of numerosity are insufficient, and because further discovery is needed to clarify issues of fact raised by Defendant's brief regarding whether Defendant sent unsolicited books to Plaintiff. See Fed.R.Civ.P. 23(a)(1), (a)(3); E.D.Pa. Loc.Civ.R. 23.1(c). We will therefore delay a complete inquiry as required by Rule 23(a)-(b) until discovery is completed.
The Complaint also alleges the violation of similar, but uncited unsolicited merchandise and consumer protection laws in other states.
I. Background
Defendant Rodale, Inc. ("Rodale") is a large publishing company incorporated in Pennsylvania with a principal place of business in Emmaus, Pennsylvania. It publishes well-known magazines including Prevention, Men's Health, Organic Style, Runner's World, Backpacker, Bicycling, Mountain Bike, and Rodale's Scuba Diving. Rodale also publishes nearly 100 new book titles each year, including recent New York Times bestsellers Dr. Shapiro's Picture Perfect Weight Loss and The Wrinkle Cure. Plaintiff Michael Karnuth, a resident and citizen of Chicago, Illinois, entered into a subscription for Men's Health magazine on or about October 21, 2000. Karnuth asserts that Rodale subsequently mailed him unordered merchandise and billed him for it in violation of state and federal law. He specifically alleges that Rodale sent him an unsolicited book "sometime in 2001" and invoiced him for $27.49. (Pl.'s Mem in Supp. of His Mot. for Class Cert., 2). After he began receiving late notices, Karnuth paid the invoice in order to avoid damage to his credit rating. At an unspecified time after he paid the invoice, his subscription to Men's Health expired. In December 2001, approximately nine months later according to Karnuth, he received a second unsolicited book from Rodale, along with a corresponding invoice for $29.97. He did not ship the book back to Rodale or pay the invoice. He received a late notice in January 2002 and every month thereafter through October 2002. In November 2002, Rodale transferred Karnuth's allegedly overdue account to a collection agency, which sent him dunning letters on a regular basis.
Defendant Rodale offers a materially different version of the facts. According to Rodale, on or about June 2, 2000, Karnuth was a subscriber to its magazine, Men's Health. Because Karnuth subscribed to the magazine, Rodale allegedly sent him a promotion for its book, Sex, A Man's Guide on or about September 20, 2000. (Ans. of Def. to Pl.'s Mot. for Class Cert., Ex. A, Aff. of Gregg Michaelson, ¶ 6.) Rodale alleges that the promotion offered the book for a 21-day preview. In order to receive the book, Rodale explains, Karnuth had to detach and return a "21-Day Free Preview Certificate," check off the "yes" box indicating that he would like a copy of the book to examine, and mail the certificate to Rodale. (Id. ¶ 3.) The certificate allegedly provided that the party returning it would accept the book for the review period, after which the person could return the book to Rodale or keep it and be billed. The promotional materials also contained a postage-paid return label for Karnuth to use if he decided to return the book. The certificate explained further that Karnuth would automatically enroll in Rodale's "Annual Program," which contained a negative option on the publisher's annual book A Man's Guide to Women. (Id. ¶ 3.) Under the terms of the negative option, an enrolled individual would receive a yearly preview that without intervention would ripen into a purchase. According to Rodale, an individual could opt out of the program with a postage-free return card provided. If an individual failed to opt out, he could still return an annual book within the designated preview period using an enclosed return postage label. (Id. ¶ 3.)
Rodale alleges that it received a completed "21-Day Free Preview Certificate" from Karnuth on or about September 28, 2000 in response to the promotion it mailed approximately one week earlier. (Id. ¶ 8.) Then on or about September 30, 2000, Rodale sent Karnuth the book, Sex, A Man's Guide, and Rodale received a payment of $39.65 from Karnuth on or about October 24, 2000. (Id. ¶ 9.) The court notes that Karnuth does not make any reference to this initial book order and in his pleadings only discusses the two later books mailed in 2001 and 2002. Rodale claims that only upon affirmatively receiving the preview certificate would they have sent the initial book, Sex, A Man's Guide, to Karnuth. Rodale further claims that the two subsequent books sent to Karnuth, the 2001 Man's Guide to Women and the 2002 Man's Guide to Women, were mailed as part of the negative option Annual Program and were not unsolicited.
The 2001 guide corresponds to the book that Karnuth identifies as sent "sometime in 2001 "that resulted in a charge of $27.49. The 2002 guide corresponds to the book that Karnuth identifies as sent in December 2001 that led to the unpaid invoice for $29.97.
Karnuth filed the class action now before this court on February 5, 2003, alleging violations of the Postal Reorganization Act, 39 U.S.C. § 3009, Pennsylvania's UMA, 73 Pa.Cons.Stat. § 2001, and Pennsylvania's UTPCPL, 73 Pa.Cons.Stat. § 201-2 et seq. The Complaint specifies a class of "all persons who, without prior consent, received books and other products from Defendant and an invoice for payment for such books and products." (Pl.'s Compl., 4, ¶ 15.) The Complaint also identifies a subclass, "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.) On April 9, 2003, Rodale filed its Answer to Count I of Plaintiff's Complaint and also filed its Motion to Dismiss Counts II and III, pursuant to Fed.R.Civ.P. 12(b)(6). This court denied the motion to dismiss by Order dated May 16, 2003. On May 6, 2003, Karnuth moved for an order certifying the class as described above. Rodale filed its Answer of Defendant to Plaintiff's Motion for Class Certification on June 23, 2003.
This court has jurisdiction over the Postal Reorganization Act claim (Count I) pursuant to 28 U.S.C. § 1331. We have jurisdiction over the Pennsylvania UMA and UTPCPL state law claims (Counts II III, respectively) under 28 U.S.C. § 1367.
II. Discussion
In order to certify a class under Rule 23, the class representative must comply with the four requirements of Rule 23(a) and fulfill the requirements of either Rule 23(b)(1), (b)(2), or (b)(3). Georgine v. Amchem Products, Inc., 83 F.3d 610, 624 (3d Cir. 1996), aff'd, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Monahan v. City of Wilmington, 49 Fed.Appx. 383, 384 (3d Cir. 2002). Karnuth seeks to certify a class of "all persons who, without prior consent, received books and other products from Defendant and an invoice for payment for such books and products." (Pl.'s Compl., 4, ¶ 15.), as well as a subclass composed 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.) We now consider whether the numerosity and typicality requirements have been met, see Fed.R.Civ.P. 23(a)(1), (a)(3), and find that certification at this time is not warranted.
Regarding the numerosity requirement, Karnuth merely asserts Rodale "has tens of thousands of subscribers and distributes thousands of unsolicited books each year." (Pl.'s Mem. in Supp. of His Mot. for Class Cert., 6.) This formulation is similar to an allegation of numerosity that was rejected by Judge Kelly inCarpenter v. BMW of North America, Inc., No.Civ.A.99-CV-214, 1999 WL 415390, at *7 (E.D.Pa. Jun. 21, 1999) ("Plaintiff has merely alleged that `upon information and belief, the proposed class consists of tens of thousands of Plaintiffs who have purchased the Subject Automobiles. . . ."'). In denying class certification, Judge Kelly explained his decision as follows:
While Plaintiff is not required to fix a precise number, Plaintiff must show some evidence of the existence of the numbers of persons for whom she speaks. Mere speculation is insufficient. To the contrary, "[a] higher level of proof than mere common sense impression or extrapolation from cursory allegations is required." Schwartz v. Upper Deck Co., 183 F.R.D. 672, 681 (S.D.Cal. 1999).Id. Unlike the plaintiff in Carpenter, Karnuth has not even alleged that discovery will bear out his assertion of numerosity. See id. Because of the unsupported speculation in Karnuth's motion for class certification, we find that at the present time he has not satisfied the numerosity requirement of Rule 23(a)(1).
With respect to the requirement of typicality, Rule 23(a) requires that the claims or defenses of the class representative be typical of the entire class. The Third Circuit has described the typicality requirement as "intended to preclude certification of those cases where the legal theories of the named plaintiffs potentially conflict with those of the absentees"; the court continued, "[t]he inquiry assesses whether the named plaintiffs have incentives that align with those of absent class members so that the absentees' interests will be fairly represented." Georgine, 83 F.3d at 631. In this case, Rodale has alleged that unsolicited books were not sent to Karnuth, or to any other individuals for that matter. To support this allegation, Rodale has offered a compelling explanation with exhaustive detail regarding an annual enrollment program with a negative option feature. It also has provided an affidavit from Gregg Michaelson, Vice-President, Publisher Direct Response Books for Rodale, Inc., confirming many of the details. Karnuth on the other hand has completely failed to acknowledge the existence of an alleged book that he affirmatively requested and for which he paid. Even assuming that some individuals were sent unsolicited books by Rodale, which in itself is uncertain, Rodale has raised the possibility that the books sent to Karnuth were not in fact unsolicited. If that allegation is true then his claims will be quite distinct than other members of the proposed class, assuming he has any claims at all, and he will not satisfy the typicality requirement of Rule 23(a)(3).
We also note that Rodale opposes class certification for reasons of commonality and adequacy, in addition to the requirements of Rule 23(b). Based on our discussion, there are also potential problems with commonality and adequacy as well.
Rather than deny Karnuth's motion for class certification outright, we will postpone any possible certification of a class until the close of discovery, pursuant to Local Rule 23.1(c). Once discovery is complete, Karnuth may again move for class certification, and we will consider his motion at that later time. See E.D.Pa. Loc.Civ.R. 23.1(c) ("In ruling upon a motion, the Court may allow the action to be so maintained, may disallow and strike the class action allegations, or may order postponement of the determination pending discovery or such other preliminary procedures as appear to the appropriate and necessary in the circumstances."); Slater v. Philadelphia Hous. Auth., 1999 WL 997758, at * 5 (E.D.Pa. Nov. 2, 1999) (denying defendant's motion to dismiss plaintiff's class action complaint because the court's earlier denial of class certification without prejudice was a delay of the class action certification pending discovery pursuant to Local Rule 23.1(c) and not a denial on the merits) (citations omitted); Gomberg v. Western Union Corp., 1997 WL 338938, *5 (E.D.Pa. June 16, 1997) (allowing motion for certification to proceed following discovery pursuant to Local Rule 23.1(c) when the parties treated the action as a class action throughout litigation, defendant refused to participate in discovery unless the motion was delayed, and defendant suffered no undue hardship).
III. Conclusion
For the reasons discussed above, the decision regarding plaintiff's motion for class certification will be postponed pending further discovery as provided by Local Civil Rule 23.1(c) regarding class actions. E.D.Pa. Loc.Civ.R. 23.1(c). This will allow the parties to clarify the factual issues that bear upon the requirements for class certification.
An appropriate order follows.
ORDER
AND NOW, this 2nd day of July, 2003, upon consideration of Plaintiff Michael Karnuth's Memorandum in Support of His Motion for Class Certification, filed May 6, 2003, and Defendant Rodale, Inc.'s Memorandum of Law in Opposition to Plaintiff s Motion for Class Certification, filed June 23, 2003, it is hereby ORDERED consistent with the foregoing memorandum that Plaintiff Michael Karnuth's Motion for Class Certification is DENIED at this time pursuant to Local Civil Rule 23.1(c) WITHOUT PREJUDICE to Karnuth's right to move for class certification following the close of discovery.