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Law Offices of Desser v. Shamrock Communications, Inc.

United States District Court, Fourth Circuit

May 21, 2013

LAW OFFICES OF LEONARD I. DESSER, P.C., Plaintiff
v.
SHAMROCK COMMUNICATIONS, INC., d/b/a 100.7 FM THE BAY Defendant

MEMORANDUM

James K. Bredar United States District Judge

This lawsuit was filed on August 30, 2012, by Plaintiff, Law Offices of Leonard I. Desser, P.C, against Defendant Shamrock Communications, Inc., d/b/a 100.7 FM The Bay, as a putative class action for Defendant’s alleged violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, because it allegedly sent “junk faxes” that failed to comply with the TCPA. (Compl., ECF No. 1.) An amended complaint corrected the name of the court, but made no other changes. (ECF No. 7.) The Court granted an unopposed motion to dismiss Count III of the complaint, brought pursuant to the Maryland TCPA (ECF Nos. 14, 15), and Defendant then filed its answer to the amended complaint (ECF No. 16). A scheduling order was entered that provided, inter alia, for a period of discovery for both merits and class certification purposes and a deadline for filing a motion for class certification. (ECF No. 20.)

Now pending before the Court are several motions:

● ECF No. 23 - Plaintiffs motion for leave to file a second amended class action complaint,
● ECF No. 24 - Defendant’s motion to strike class allegations,
● ECF No. 27 - Plaintiffs motion for extension of time for amendment of pleadings, by eleven days, nunc pro tunc, and
● ECF No. 28 - Plaintiff s motion to compel discovery responses.

All motions have been extensively briefed (ECF Nos. 25, 30, 31, 32, 34, 35, 36), and no hearing is necessary, Local Rule 105.6 (D. Md. 2011). The Court notes that the motions are intertwined and should be considered together. Plaintiffs motions will be granted, and Defendant’s motion will be denied.

The Court begins with the motion by Plaintiff to extend the time in the scheduling order by eleven days, nunc pro tunc, for moving for amendment of pleadings and with the motion for leave to file a second amended complaint. Because the scheduling order should only be altered for good cause, Federal Rule of Civil Procedure 16(b)(4), the Court must determine whether Plaintiff has presented good cause. Although Plaintiff has stated that it received a hard copy of Defendant’s discovery responses only after the scheduling order’s deadline for moving to amend (it received an electronic version the day before), the timing of Defendant’s responses is not the basis for the Court’s decision. Plaintiff has said that it wants to clarify a discrepancy in the complaint between language defining the class members in one place that differs from other allegations as to the scope of the class. Specifically, Plaintiff wants to clarify that it is alleging a nationwide class, not one limited to Maryland.

In the Court’s view, the good cause arises from this discrepancy in the complaint. It is nonsensical to litigate this case when some allegations clearly refer to recipients of “junk faxes” outside of Maryland and allege a nationwide class (Am. Compl. ¶¶ 14, 15, 19, 21) and when one other allegation defines the class as persons within Maryland (¶ 24). Defendant was unequivocally put on notice that Plaintiff would be seeking certification of a nationwide class by the following allegations:

14. Plaintiff brings this action individually and as the representative of all members of a class, nationwide . . . .
15. . . . [Defendant] transmitted unsolicited facsimile advertisements to Plaintiff and to thousands of other consumers in Maryland and elsewhere throughout the United States.
19. Plaintiff brings this action . . . on behalf of a class of all other persons or entities similarly situated throughout the United States.
21. . . . [Defendant] has transmitted unsolicited facsimile advertisements to thousands of consumers and entities throughout ...

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