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Golan v. Veritas Entertainment, LLC

United States District Court, E.D. Missouri, Eastern Division

October 5, 2016

RON GOLAN, et al., Plaintiff,
v.
VERITAS ENTERTAINMENT, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE

         This 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].

         A. Motion for Leave to File Amended Complaint

         Plaintiffs 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.

         Because 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.

         B. Motion to Compel

         Plaintiffs' 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.

         Plaintiffs' 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 campaign.
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, 2012.

         Plaintiffs 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.).

         Defendants 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.

         “All 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 ...


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