United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' Motion for
Leave to File the Attached Third Amended Class Action
Complaint [ECF No. 148] and Plaintiff Ron Golan's Motion
to Compel, Against Defendants Freeeats.com, Inc., AIC
Communications, LLC, and Gabriel S. Joseph, III, Documents
from Defendants' Responsive to Requests Numbers 1-5 of
the First Set of Document Requests Dispatched to Defendants
[ECF No. 151].
Motion for Leave to File Amended Complaint
Ron and Dorit Golan (“Plaintiffs”) seek leave to
file a third amended complaint which removes Defendants who
have been previously dismissed by the Court, adds allegations
of intrusions and harms caused by Defendants, and adds
allegations of an automatic telephone dialing system.
Defendants objected, arguing the amendment to include
allegations of an automatic telephone dialing system would be
futile. Defendants claim the Telephone Consumer Protection
Act does not prohibit the use of auto-dialers when calling
residential telephone lines and Plaintiffs' complaint
only includes allegations of calls to residential telephone
lines. Defendants further object to the filing of the third
amended complaint because the addition of the automatic
telephone allegations will increase the scope of discovery,
delay resolution of litigation and increase defense costs. In
response to Defendants' opposition, Plaintiffs removed
the allegations regarding an automatic telephone dialing
system from the third amended complaint.
Plaintiffs removed the allegations which concern
Defendants' objections to the filing of the third amended
complaint, and no other objections were filed, the Court will
permit Plaintiffs to file their third amended complaint.
Motion to Compel
Motion to Compel asks the Court to require Defendants
Freeeats.com, Inc., AIC Communications, LLC, and Gabriel S.
Joseph, III (“Defendants”) to produce an
electronic list of all people illegally called by Defendants
in this matter and for copies of summary reports prepared by
Defendants which describe the magnitude of those called, what
was asked of those who were called, and the responses the
called people made. Defendants argue the motion should be
denied because Plaintiffs failed to meet and confer with
Defendants, the law of the case prevents re-litigation of
this discovery dispute, and Defendant ccAdvertising already
produced the summary reports Plaintiffs are requesting.
First Set of Document Requests, for which they are seeking to
compel responses, states:
Request (1): Please produce (without redaction) all documents
which state the name or telephone number for some or all of
those households or persons telephoned by Defendant AIC
Communications, LLC for the Last Ounce of Courage movie
Request (2): Please produce (without redaction) the complete
Final Report for the USA-Stand USA-Survey 1 campaign which
ran from August 14 to August 16, 2012.
Request (5): Please produce (without redaction) the complete
Results Data - One or More Report for the USA-Stand
USA-Survey 1 campaign which ran from August 14 to August 16,
claim they need the information in Request 1 to certify the
class. Plaintiffs must be able to contact consumers who were
called by Defendants to properly assert and argue their
motion for class certification. A key issue in this matter is
whether consumers consented to receive the telephone calls.
Plaintiffs are not seeking information regarding class
members to establish how many are in the class, or the
numerosity of the class. See Drake v. Aerotek, Inc.,
No. 14-CV-216-bbc, 2014 WL 7408715 at *2 (W.D. Wis. Dec. 30,
2014) (discovery before class certification may be necessary
to determine typicality and commonality but not for
determination of numerosity.).
argue the state court, which handled this case before it was
removed to this Court, rejected Plaintiffs' request for
this same information before class certification and
therefore, the law of case doctrine prevents it from being
relitigated. Defendants also argue the decisions of the state
court are enforceable in federal court after removal.
injunctions, orders, and other proceedings had in such action
prior to its removal shall remain in full force and effect
until dissolved or modified by the district court.” 28
U.S.C. § 1450. Additionally, the law of case doctrine
prevents relitigation of a settled issue in a case.
Gander Mountain Co. v. Cabela's, Inc., 540 F.3d
827, 830 (8th Cir. 2008). The principle of the doctrine is
when a court makes a decision, the decision should continue
to govern the same ...