KELLY v. VERIZON PENNSYLVANIA, LLC et al

RESPONSE to Motion re MOTION to Preclude The Introduction of Testimony

E.D. Pa.December 7, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CHRISTOPHER KELLY, individually and on : behalf of all others similarly situated, : : Case No. 2:16-cv-05672-MSG Plaintiff, : : v. : : VERIZON PENNSYLVANIA LLC, VERIZON : ONLINE PENNSYLVANIA PARTNERSHIP, : and VERIZON PENNSYLVANIA, : : Defendants. : PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO PRECLUDE PLAINTIFF’S INTRODUCTION OF TESTIMONY BY CERTAIN WITNESSES I. INTRODUCTION Plaintiff’s proferred Pennsylvania state custodial witnesses are being introduced for one reason only: to match Verizon’s own customer list with the underlying (and previously relied-upon) Pennsylvania Voter Registration Database and Pennsylvania Property Records. This is the same data upon which all of Plaintiff’s two previous analyses have been based. The data is not “new evidence,” was the exact data relied upon and summarized by Plaintiff’s lay witness (Mr. Ferrara) and Plaintiff’s counsel in their submitted declarations1, and was specifically cited by Plaintiff’s counsel in the call with the Court on October 24. Finally, contrary to all of Defendants’ characterizations, Plaintiff’s witnesses are being submitted completely in line with the Judge’s October 26, 2018 Order. See Doc. No. 107. Thus, for the simple reasons enumerated below, Plaintiff respectfully requests this Court to end Defendants’ charade, and allow Plaintiff to present his witnesses at the December 12 hearing. 1 See Docket No. 94 (Plaintiff’s Memorandum in Support of its Second Renewed Motion to Remand), at Exhibit J (Ferrara Declaration) and K (Ferrara Second Declaration); and Ex. (Plaintiff’s Reply in Support of its Renewed Motion to Remand), Exhibits T (Weinstein Declaration) and U (Senoff Declaration). Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 1 of 10 2 Finally, Defendants’ continued attempts to stymie Plaintiff’s Motion to Remand begs this Court to consider awarding Plaintiff the attorneys’ fees it originally requested in its initial Motion to Remand. II. FACTUAL AND PROCEDURAL BACKGROUND On September 28, 2016, Plaintiff commenced this Class Action by Complaint filed in the Philadelphia County Court of Common Pleas naming Verizon PA, VOPP, and Verizon Pennsylvania.2 On October 31, 2016, Defendant Verizon Pennsylvania LLC and non-party Verizon Online LLC, whom Defendants identified as “Verizon Online LLC (as successor to Verizon Online Pennsylvania Partnership)” filed an unverified Notice of Removal under 28 U.S.C. § 1332(d)(2) alleging, without any supporting documentation or declarations, that “[a]long with other members of the alleged putative class, Plaintiff is not a citizen of the same states as Verizon,” thus allegedly establishing minimal diversity at 28 U.S.C. § 1332(d)(2)(C). 3 On November 30, 2016, Plaintiff filed its first Motion to Remand arguing that the “local controversy” exception to CAFA compelled remand to the Court of Common Pleas of Philadelphia County.4 On January 6, 2017, Verizon filed an opposition to Plaintiff’s Motion to Remand, arguing, in part, that: Plaintiff could not establish that at least two-thirds of the Class are Pennsylvania citizens due to a drafting error by Plaintiff describing the Class as consisting of Pennsylvania “residents.”5 Since that time, almost two years ago, Defendants have attempted at every turn and at all costs to obstruct Plaintiff’s evidence showing that two-thirds of Verizon’s own Pennsylvania customers were citizens of Pennsylvania, thereby unnecessarily multiplying these proceedings. The most recent example of this vexatious and obdurate behavior: Defendants have refused to stipulate to the fact that two-thirds of its customers were Pennsylvania citizens (despite its knowledge of the domicile of its customers by virtue of its own customer billing data), refused to stipulate to a sample size smaller than the almost 180,000 2 See, e.g., Plaintiff’s Second Renewed Motion to Remand (Doc. 94), Exhibit A, at ¶¶ 1, 14-17. 3 See Verizon’s Notice of Removal (Doc. 1) at ¶¶ 13-18. 4 See Plaintiff’s Motion to Remand (Doc. No. 12). 5 See Doc. No. 20, at 6. Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 2 of 10 3 total members of the Class (as was set forth in, and accepted by the Western District of Pennsylvania in Vodenichar v. Halcon Energy Props., Inc., No. 13cv0360, 2013 WL1386954, at *4 (W.D. Pa. Apr. 4, 2013)), and attempted to discredit both of Plaintiff’s analyses, which emanate from publicly available official records, yet never once performing its own analysis against the underlying, publicly available property and voter registration data. To that end, Verizon has never alleged that a particular absentee Class member is not a registered voter in Pennsylvania or is not a property owner in Pennsylvania. While Plaintiff recognizes that in the context of a motion for remand, he bears the burden of establishing the application of the so-called “Local Controversy Exception,” nevertheless, as the removing party, Verizon bears the burden of “showing that at all stages of the litigation the case is properly before the federal court.” Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d 392, 396 (3d Cir. 2004) (citing Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993)); see also Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); Bajrami v. Reliance Standard Life Ins. Co., No. 18-cv-162, 2018 WL 4635714, at *2 (E.D. Pa. Sept. 27, 2018) (Rufe, J.). While this Court’s jurisdiction may have seemed obvious to Verizon and its counsel more than two years ago on October 31, 2016 when it removed this case, the now-uncontroverted evidence that more than two-thirds of the putative Class are citizens of the Commonwealth of Pennsylvania, makes Verizon’s jurisdictional analysis anything but obvious. Rather than making any attempt at actually proving this Court’s jurisdiction presently, Verizon has instead ventured upon a path of establishing this Court’s jurisdiction through the attempted censorship of otherwise admissible evidence, to obscure from this Court (and likely the Court of Appeals) the fact that more than two-thirds of the putative Class members are citizens of the State: (1) where this action was commenced (Pennsylvania); (2) where at least one Defendant (Verizon Pennsylvania, LLC), is a citizen of the same state, from whom the class seeks significant relief and whose alleged conduct forms a significant basis of the claims asserted; and (3) principal Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 3 of 10 4 injuries resulting from the alleged conduct or any related conduct of each Defendant were incurred in Pennsylvania. See 28 U.S.C. § 1332(d)(4)(A). III. ARGUMENT 1. Plaintiff’s Previous Summaries Relied on Pennsylvania Voter Registration and Property Ownership Records Plaintiff’s two citizenship analyses, previously presented to this Court, both consistently and conclusively established that more than two-thirds of the purported Class are Pennsylvania citizens. Both of these analyses were based on the same underlying evidence: i) the Pennsylvania voter record or voter file and ii) the Pennsylvania real property ownership records. See Docket No. 94 (Exs. J, K, T, and U). Now, Plaintiff merely seeks to introduce the Pennsylvania custodians of record who have full, and determinative, access to these files, to authenticate and finally put to rest the question of the Class’s citizenship. In short, Plaintiff seeks to introduce the actual “raw” data underlying that Plaintiff has always relied upon in all of its briefing to the Court. In the first analysis, Angeion confirmed that 90.6 percent (or, 161,676 individuals) were citizens of Pennsylvania as of the date of filing of the Class Action Complaint (i.e., these individuals both maintained residencies in Pennsylvania and were either registered to vote, or owned real property, in the Commonwealth on September 28, 2016).6 As noted in Mr. Ferrara’s First and Second Declarations, to reach this conclusion, “Angeion performed searches of Pennsylvania Voter Registration Records (‘Voter Registration Records’) and Pennsylvania Property Ownership Records (‘Property Ownership Records’), two of the commonly recognized factors of verifying citizenship, on this Class List.” See Doc. 94, Decl. of Charles E. Ferrara, Exhibit J, ¶ 4; and (Second) Decl. of Charles E. Ferrara, Exhibit K, ¶ 2. 6 If the 161,676 Pennsylvania Defendants is compared to the total class number (both objecting and non-objecting) the percentage is still well above two-thirds, or 89.6%. Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 4 of 10 5 Plaintiff’s second analysis, as explained in its Reply in Support of its Amended Motion to Remand and again in the Renewed Second Motion to Remand, randomly selected 665 customers from the almost 180,000 customers identified by Verizon (i.e., the Class), and queried those individuals in “PeopleMap on Westlaw,” which is a “premier public records search tool”7 in order to search Pennsylvania property records to determine property ownership. See Doc. 94, at 16. Specifically, Plaintiff reviewed the Westlaw “Real Property Tax Assessor Record” and “Real Property Transaction Record” portions for information on whether an individual currently owned the property, or owned the property at the time of the filing of the Complaint. See Weinstein Declaration (Doc. 94, Ex. T), ¶¶ 9-12. Plaintiff also compared the sample of the Verizon Customer List against the Pennsylvania voter registration file. Senoff Declaration (Doc. 94, Ex. U), ¶¶ 11-18. From those comparisons, Plaintiff identified 497 unique individuals (or 75 percent) of the sample as having independent indications of citizenship. See Reply (Doc. 94) at 17. Thus, Plaintiff’s sample extrapolated out, indicated with 99% certainty that at least 75% of the 178,376 non-objecting Verizon customers who maintain Pennsylvania residences would be considered Pennsylvania citizens (with a confidence interval of 5%). Id. In short, Plaintiff has always compared Verizon’s voluminous Pennsylvania customer list against the same two lists: the Pennsylvania voter record and Pennsylvania real property ownership records, using all public information at its disposal. And, Plaintiff has always maintained that these analyses were summaries of the underlying voluminous property and voter registration data, pursuant to Federal Rule of Evidence 1006. See Response to Motion to Strike Ferrara Decl., Doc. 77 at 10-11. Thus, Defendants entire basis for its Motion cannot be supported, as Plaintiff is not seeking to admit any “new” evidence, or “new analysis” at all; rather, it is seeking to admit the underlying raw data it has utilized in two previous analyses. C.f. Laborers' Int'l Union of N. Am., AFL- 7 See, e.g., “PeopleMap on Westlaw,” THOMSON REUTERS (2018), available at https://goo.gl/Y357HG. This tool is quite similar to (although more comprehensive than) the database credited in Vodenichar. 2013 WL 1386954, at *4. Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 5 of 10 6 CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief.”). Against Plaintiff’s apparent vain attempt to placate Verizon by introducing the entirety of the raw underlying data against which Plaintiff compared Verizon’s customer list, Verizon has now taken the position that even the raw data authenticated by a custodian of records should not be seen by this Court and should be hidden from view. To be clear, Verizon has previously objected to the introduction of summaries of the official public records and now objects to the introduction of the actual official public records themselves. Defendants’ tired attempts to argue that they were “not on notice” of these records cannot be believed. In fact, Verizon has been on notice since jurisdictional discovery began in September 2017 that Plaintiff would seek to prove that the Class was comprised of at least two-thirds of Pennsylvania citizens. Then, after the December 20, 2017 hearing regarding any potential objections of Verizon’s customers, Plaintiff informed Defendants that it would be hiring Angeion to perform a comparison of public records against Verizon’s non-objecting customer list. See D. Senoff Jan. 31, 2018 email, attached as Exhibit C to Plaintiff’s Reply in Support of its Renewed Motion to Remand. Even with almost a full year’s worth of advanced notice, Verizon has never undertaken any of its own analysis of its own customers, and seem content to merely speculate as to how the citizenship of the class might not be sufficiently “Pennsylvanian” in character. See, e.g., Walker v. Apple, Inc., 2015 WL 12699871, at *5 (S.D. Cal. Sept. 16, 2015) (“Despite Defendants’ access to allegedly 9,000 employment files, it has failed to present any evidence to rebut the most reasonable inferences to be drawn from Plaintiff’s evidence.”). Plaintiff stands by its previously submitted Declarations, which are sufficient to prove the Class’s citizenship. See Jones v. EEG, Inc., No. 15-5018, 2016 WL 1572901, at *4 (E.D. Pa. April 18, 2016) (holding that the standard for proving the class’s citizenship for CAFA remand purposes is that a plaintiff must “submit some evidence of domicile for a court to apply common sense Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 6 of 10 7 assumptions and logical inferences to determine the probable citizenship of a putative class.”). Now, Plaintiff only seeks to introduce the testimony of custodians of records who have full, and determinative, access to the Pennsylvania voter file and Pennsylvania real property ownership, the data upon which all of its summary charts and analyses are based. 2. The Process Described in Defendants’ Motion is Inaccurate Plaintiff’s intended “process,” as described in Defendants’ Motion, is inaccurate. In fact, Plaintiff first intends to call a Pennsylvania State Uniform Registry of Electors (SURE) Operator. The SURE system is developed as a single, uniform integrated computer system that contains a database of all registered electors in the Commonwealth of Pennsylvania. 25 Pa. C.S. § 1222(c).8 Plaintiff will then cross-check, by individual name, Defendants’ Pennsylvania customer list against the SURE Operator’s database. Plaintiff does not intend to ask the SURE Operator to “describe the record.” Further, if the individual’s name appears as registered to vote in Pennsylvania, Plaintiff does not need to call any further witness to confirm their status as citizen. See Schwartz v. Comcast Corp., 2006 U.S. Dist. LEXIS 7499, at *17 (E.D. Pa. Feb. 28, 2006); see also, e.g., Jones v. EEG, Inc. 2016 U.S. Dist. LEXIS 51379, at *13 (E.D. Pa. April 18, 2016) (listing voter registration and location of personal and real property as two separate, determinative indicia of citizenship). Plaintiff estimates this process to take a few hours before it reaches over two-thirds of the Class; not, as Defendants assert “weeks or months of testimony.” Defendants cannot simultaneously claim Mr. Ferrara’s summary charts to be inadmissible, while seeking to exclude the records upon which the summary is based because it is “untenable.” 8 The SURE system was established and enacted in 2002 by the Pennsylvania legislature. 25 Pa. C.S. § 1222. Nevertheless, it was a federal statute, the Help America Vote Act (“HAVA”) of 2002, 42 U.S.C. §§ 15301-15545 (2002) (now 52 U.S.C. § 20901, et. seq.), specifically 52 U.S.C. § 21083(a)(1)(A), that required each state to implement a “single, uniform, official, centralized, interactive computerized statewide voter registration list” that was to be maintained at the state level and that contained the name and registration information of every legally registered voter in the state, and assigned each voter a unique identifier. Id.; see also 25 Pa. C.S. § 1222; 1328.1. As such, the records contained in the SURE system to which the custodian of the SURE system will contemporaneously testify are self-authenticating under any number of the Federal Rules of Evidence including, but not limited to, F.R.E. 902(4), 902(5), 902(11), 902(13), and 902(14). Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 7 of 10 8 See U.S. v. Bertoli, 854 F. Supp. 975, 1050 (D. N.J. 1994) (“Rule 1006 does not require that it be literally impossible to examine all the underlying records [before a summary chart be utilized], but only that in-court examination would be an inconvenience.”) (citations omitted). While Plaintiff does not expect the SURE Operator’s testimony to be riveting, Plaintiff seeks to finally put an end to the question of the Class’s citizenship. 3. The Remand Order Should Require Payment of Costs, Expenses, and Attorneys’ Fees, Precipitated by Verizon’s Continued Groundless Defense of its Removal to Federal Court. Pursuant to 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” Overall, the Third Circuit has stated that “[w]hen removal of an action is improper, the plaintiff may be entitled to recover . . ., regardless of whether the action was removed in bad faith.” Mints v. Educ. Testing Serv., 99 F.3d 1253, 1259 (3d Cir. 1996). District courts enjoy “broad discretion . . . to require the payment of fees under section 1447(c).” Id. at 1260. These procedures are explicitly applicable in the context of CAFA. See, e.g., Farina v. Nokia, Inc., 625 F.3d 97, 114 (3d Cir. 2010). “Bad faith on the part of the removing party is not a prerequisite to an award of attorneys fees, but it is a consideration.” Siebert v. Norwest Bank, 166 Fed. Appx. 603, 607 (3d Cir. 2006). “[W]here the substantive basis for the removal petition was ‘frivolous’ or ‘insubstantial,’ a district court may exercise its discretion to award fees.” Siebert v. Norwest Bank, 166 Fed. Appx. 603, 607 (3d Cir. 2006). Simply stated, there has never been an objective basis for Defendants’ removal. Verizon pressed ahead with jurisdictional discovery and protracted notice procedures under 18 Pa.C.S. § 5742 in the absence of good faith. Even as this Court has reminded Defendants’ of Plaintiff’s low burden of proof to prove citizenship, Verizon continues to press on. The imposition of costs and fees is doubly appropriate in this instance, as it will not only compensate Plaintiff for the expenditures undertaken in opposition, but will also administer a check against future, similarly Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 8 of 10 9 reckless behavior.9 Plaintiff’s current costs in this matter from the date of removal (October 31, 2016) until the present amount to $108,999.81. Additionally, Plaintiff accrued attorneys’ fees during the same period in the total amount of $ 427,955.00. The total of these two amounts is $536,954.81.10 IV. CONCLUSION: Plaintiff respectfully requests that the Court deny Defendants’ Motion to Preclude Plaintiff’s Introduction of Testimony by Certain Witnesses and allow Plaintiff to call a Pennsylvania SURE Operator and, if necessary, the Recorder of Deeds for each five-county area. Respectfully submitted, ANAPOL WEISS /s/ David S. Senoff Sol H. Weiss, Esquire (No. 15925) David S. Senoff, Esquire (No. 65278) Hillary B. Weinstein, Esquire (No. 209533) Clayton P. Flaherty, Esquire (No. 319767) One Logan Square 130 N. 18th Street, Suite 1600 Philadelphia, PA 19103 (215) 383-2745 Phone (215) 875-7716 Fax sweiss@anapolweiss.com dsenoff@anapolweiss.com hweinstein@anapolweiss.com Dated: December 7, 2018 cflaherty@anapolweiss.com 9 In addition, Verizon’s latest evidentiary gambit has unreasonably and vexationsly multiplied these proceedings such that this Court could also assess sanctions against Verizon pursuant to 28 U.S.C. § 1927. 10 See, e.g., Declaration of David S. Senoff, Esquire, a copy of which is attached hereto and marked Exhibit “A.” Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 9 of 10 CERTIFICATE OF SERVICE I, David S. Senoff, hereby certify that on this 7th day of December, 2018, I served a true and correct copy of the foregoing Response to Defendants’ Motion to Preclude Introduction of Testimony by Certain Witnesses on all counsel of record via the Court’s CM/ECF electronic filing system. /s/ David S. Senoff David S. Senoff, Esquire Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 10 of 10