UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

SHANA DOTY, individually and on behalf of 

all others similarly situated, 

Plaintiff, 

v. 

ADT, LLC d/b/a ADT SECURITY 

SERVICES, a Delaware limited liability 

company, 

Defendant. 

 Case No. 0:20-cv-60972-AHS 

DEFENDANT’S MOTION FOR LEAVE TO FILE 

MOTION TO DENY CLASS CERTIFICATION 

ADT LLC (“ADT”) moves this Court for leave to file a Motion to Deny Class Certification 

and for immediate consideration of that Motion by the Court prior to the deadline for Plaintiff’s 

motion for class certification. In support hereof, ADT states as follows: 

This purported class action arises out of ADT’s self-reporting of isolated criminal conduct 

by a now-former ADT technician (who is also named as a defendant in this lawsuit). That conduct 

affected 216 Pulse customer households, including that of Plaintiff Doty. Following that conduct, 

Plaintiff brings five claims against ADT including breach of contract, negligent and intentional 

torts, and a claim under Texas consumer protection statute.1 Plaintiff also seeks certification of a 

nationwide class of “[a]ll ADT Pulse customers in the United States whose security systems were 

remotely accessed by an employee or agent of Defendant ADT without authorization from the 

customer” and a sub-class of “[a]ll ADT Pulse customers in the United States whose security 

systems were remotely accessed by Telesforo Aviles without authorization from the customer.” 

1

 Plaintiff’s claims for intrusion upon seclusion, for violation of the Computer Fraud and Abuse 

Act, and for injunctive relief in the form of privacy monitoring were dismissed. [ECF No. 85]. 

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[ECF No. 47, ¶ 50]. Plaintiff seeks to recover economic damages in the form of replacement costs 

for replacing ADT devices and non-economic damages for emotional distress. 

This lawsuit has been pending for over 9 months, during which time the parties have 

engaged in written discovery. Plaintiff has served one set of interrogatories and requests for 

production on ADT in October 2020 and ADT has produced over 11,000 pages of documents, 

beginning its production in August 2020 and completing its production on February 10, 2021. 

Plaintiff has not served any additional discovery, nor raised any discovery matters with the Court. 

Moreover, the parties are scheduling mediation to occur by May 7, 2021.2 [ECF No. 94] 

Following the Court’s ruling on ADT’s motion to dismiss, the Court required the Parties 

to submit a joint scheduling report and proposed scheduling order. [ECF No. 87] In their 

submission, the Parties agreed to a pretrial schedule of deadlines, including a deadline by which 

Plaintiff must file any motion for class certification. [ECF No. 88] The parties disagreed as to 

whether to include that same deadline as the deadline by which ADT could file any motion to deny 

class certification. Id.

On February 5, 2021, this Court entered a Scheduling Order setting a trial date and pretrial 

deadlines in this matter. [ECF No. 90] Among those deadlines, the Court required Plaintiff to file 

any motion to certify a class by June 11, 2021. Id. The Court indicated that ADT “may raise all 

grounds for denying class certification in its response to Plaintiff’s Motion to Certify Class and 

may move for leave to file a sur-reply, if necessary.” [ECF No. 90 at n. 1]. 

While ADT agrees it makes little sense to have competing motions to grant and deny 

certification filed at the same time in June, ADT seeks leave from this Court to file a motion to 

deny class certification now, rather than in June. 

2

 Notably, the parties are setting mediation well in advance of the November mediation deadline 

set by the Court’s Scheduling Order. 

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MEMORANDUM OF LAW 

I. A motion to deny class certification is procedurally proper and would save time 

and judicial resources. 

“At an early practicable time after a person sues or is sued as a class representative, the 

court must determine by order whether to certify the action as a class action.” Fed. R. Civ. P. 

23(c)(1)(A). An early decision on whether litigation may proceed as a class action helps avoid the 

“unnecessarily high risk [presented by] introducing needless and avoidable complexity into an 

already complex case.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1279 (11th Cir. 2009) (“Rule 

23 demands an early consideration of class certification.”). It also serves to stream-line discovery, 

simplify the issues in litigation, and assist the parties in assessing potential case value, conserving 

the resources of both the Court and the Parties. 

Neither the Federal Rules of Civil Procedure, nor the Local Rules of this Court, prohibit a 

defendant from serving a motion to deny class certification. Instead, consistent with Rule 23’s 

mandate, a court is not required to await a plaintiff’s motion to certify the proposed class and may 

instead issue an order upon a defendant’s motion, or “even where neither party moves for a ruling 

on class certification.” Martinez-Mendoza v. Champion Int'l Corp., 340 F.3d 1200, 1216 n.37 

(11th Cir. 2003) (citation omitted); see also e.g., Williams v. Burger King Corp., Case No. 19-

24755-SINGHAL, 2020 WL 5083550 (S.D. Fla. Jul. 20, 2020); Turner v. Food Corp., No. 08-

61042-CIV, 2009 WL 10668616, at *2 (S.D. Fla. Feb. 3, 2009) (noting that Rule 23 does not 

prevent a defendant from moving preemptively to preclude class certification). Indeed, “district 

courts throughout the nation have considered defendants' ‘preemptive’ motions to deny 

certification.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 940 (9th Cir. 2009) 

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(collecting cases).3 Simply stated, a court should determine whether to certify a proposed class as 

soon as the court is able to determine the viability of maintaining a class under Rule 23. 

II. The existing record adequately resolves certification issues. 

Here, class certification can be adjudicated at this time and leave should be granted for 

ADT to file a motion to deny class certification. It is abundantly clear from the nature of Plaintiff’s 

claims, the damages sought, and the record as it exists that Plaintiff cannot satisfy the Rule 23 

requirements of commonality, typicality, adequacy, predominance, superiority and manageability. 

That is because a myriad of individualized issues exist at every step of the way along Plaintiff’s 

burden of proof. The causation and damages requirements of Plaintiff’s tort claims inherently give 

rise to individualized issues, making those claims generally unsuitable for class action treatment, 

as does the actual reliance element of Plaintiff’s DTPA claim. Moreover, here, specific 

individualized issues exist with regard to contract formation (the existence and enforceability of 

arbitration provisions in the contracts governing the 216 potentially affected accounts); standing; 

frequency, nature, and timing of Aviles’ account access, if any (some accounts were never 

accessed by Aviles beyond the addition of his email address); circumstances surrounding how 

access was first obtained; representations made by ADT and/or Aviles to account holders; 

customers’ subjective understanding of the operation and security of their systems; and whether 

and to what extent a class member was damaged (whether Aviles actually accessed a camera feed 

during a time a customer was home and visible). Further discovery, to the extent Plaintiff intends 

to pursue any, will not obviate these individualized issues, nor will it be possible for Plaintiff to 

3

 Secondary Sources also recognize that defendants may put class certification at issue by moving 

to deny certification. See, e.g., 5 Moore's Federal Practice § 23.82[1], at 23-380 (2008) (“The 

defendant need not wait for the plaintiff to act, however. The defendant may move for an order 

denying class certification.”); 7AA C. Wright, A. Miller & M. Kane, Federal Practice & 

Procedure: Civil 3d § 1785, at 360 (2005) (“Either plaintiff or defendant may move for a 

determination of whether the action may be certified under Rule 23(c)(1)”). 

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“discover” some uniform way in which the varied claims of the putative class members can be 

adjudicated in a manageable fashion through a class action. Further discovery will likewise not 

assist Plaintiff in establishing a damages model for computing emotional distress damages on a 

class-wide basis. 

Moreover, a class action here is not superior to other methods of adjudication. Of the 216 

putative class members, 182 accounts are governed by contracts with arbitration clauses and class 

action waivers, leaving only 34 account holders whose contracts allow them to pursue class action 

recovery. ADT has resolved the claims of 15 of those remaining 34 account holders, leaving a 

putative class of at most 19 account holders (some of whom have separately retained counsel and 

have no interest in participating in this class action). Given the small number of accounts that may 

actually benefit from a class action, as well as the myriad of individualized issues that predominate 

throughout Plaintiff’s claims, an early determination of class certification is not only feasible but 

will serve the interests of judicial economy and efficiency. 

For these reasons, good cause exists to grant ADT leave to file a motion to deny class 

certification at this time, and for the Court to consider that motion in advance of Plaintiff filing a 

motion for class certification. In addition, this lawsuit has been pending for over nine months, 

providing adequate time for class discovery. Because no further discovery is necessary to 

determine class certification, ADT requests leave of this Court to file a Motion to Deny Class 

Certification. 

LOCAL RULE 7.1(a)(3) CERTIFICATION 

Counsel for ADT has conferred with Plaintiff’s counsel on March 9-10, 2021 and 

Plaintiff’s counsel indicted they oppose this motion. 

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Dated March 10, 2021 Respectfully submitted, 

Jennifer A. McLoone

Alfred J. Saikali (Florida Bar No. 178195) 

E-Mail: asaikali@shb.com

Jennifer A. McLoone (Florida Bar No. 029234) 

E-Mail: jmcloone@shb.com 

SHOOK, HARDY & BACON L.L.P.

201 South Biscayne Blvd., Suite 3200

Miami, Florida 33131 

T: (305) 358-5171 

-andCharles C. Eblen (admitted pro hac vice) 

E-Mail: ceblen@shb.com 

Jason R. Scott (admitted pro hac vice)

E-Mail: jscott@shb.com 

SHOOK, HARDY & BACON L.L.P. 

2555 Grand Boulevard 

Kansas City, MO 64108 

T: (816) 474-6550 

Counsel for ADT LLC 

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