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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

PENNY RUMSEY, individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

BIRCH COMMUNICATIONS, INC. 

d/b/a LIGHTYEAR WIRELESS, a 

Georgia corporation, 

Defendant.

Case No.: 2:14-cv-12700

Hon. Gershwin A. Drain

Mag. Judge R. Steven Whalen

PLAINTIFF’S RENEWED1 MOTION FOR CLASS CERTIFICATION 

Plaintiff Penny Rumsey (“Rumsey”), through her undersigned counsel, 

hereby respectfully moves the Court for an Order certifying this case against 

Defendant Birch Communications, Inc. (“Birch Communications”) as a class 

action pursuant to Federal Rules of Civil Procedure 23(b)(2) and (b)(3), but 

requests that the Court enter and continue the instant motion until after the 

completion of discovery on class-wide issues, at which time Plaintiff will submit a 

																																																							 1 Plaintiff is renewing the instant Motion pursuant to the Court’s July 11, 

2014 Order, which directed Plaintiff to re-file her motion for class certification 

“once she has effectuated proper service.” (Dkt. 6.) Defendant was properly 

served on July 22, 2014. (Dkt. 8.)

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full memorandum of points and authorities in support of class certification.2

MEMORANDUM IN SUPPORT OF 

PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

ISSUE PRESENTED

Should this Court enter an order certifying this case as a class action 

pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (b)(3)?

CONTROLLING AUTHORITY

Fed. R. Civ. P. 23(a), (b)(2), and (b)(3).

I. The Proposed Class 

Plaintiff seeks to certify this case as a class action on behalf of a proposed 

class defined as follows:

All persons in the United States who (1) received a telephone call; (2) 

																																																							 2 Plaintiff originally filed this Motion simultaneously with her Class Action 

Complaint and Demand for Jury Trial (Dkt. 1) (“Complaint”) and renews it now 

for the purpose of preventing Defendant from attempting a so-called “pick off” to 

moot her representative claims (i.e., tendering to her the full amount of individual 

damages alleged in the Complaint). See Brunet v. City of Columbus, 1 F.3d 390, 

399-400 (6th Cir. 1993) (noting that a “pick off” does not moot the named 

plaintiff’s claims “where a motion for class certification has been pursued with 

reasonable diligence and is then pending before the district court.”); see also

Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011) (“Class-action 

plaintiffs can move to certify the class at the same time that they file their 

complaint. The pendency of that motion protects a putative class from attempts to 

buy off the named plaintiffs . . . If the parties have yet to fully develop the facts 

needed for certification, then they can also ask the district court to delay its ruling 

to provide time for additional discovery or investigation.”). Further, given that

Defendant was only recently served on July 22, 2014 (see Dkt. 8) and has not yet 

appeared in this case, Plaintiff was unable to obtain concurrence from Defendant 

for the relief sought in this Motion pursuant to L.R. 7.1.

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promoting an opportunity related to “Lightyear Wireless;” (3) that featured 

an artificial or pre-recorded voice; and (4) for which the caller had no record 

of prior express consent to make such call to the telephone number that 

received it.3 (Compl. ¶ 26.)

II. Fed. R Civ. P. 23’s Requirements for Certification

In determining whether to certify a class, the Court does not inquire into the 

merits of a plaintiff’s claims. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 

(1974). Instead, “when evaluating whether to certify the class, the district court 

must take the allegations of plaintiffs as true, with any doubts resolved in favor of 

certification.” Yadlosky v. Grant Thorton, L.L.P., 197 F.R.D. 292, 295 (E.D. Mich. 

2000). 

The Court may certify a class when the plaintiff demonstrates that the 

proposed class and proposed class representatives meet Rule 23(a)’s four 

prerequisites—numerosity, commonality, typicality, and adequacy of 

representation—and at least one of the three provisions of Rule 23(b).

As shown below, the Class satisfies each of Rule 23(a)’s prerequisites and 

the requirements for certification under Rules 23(b)(2) and (b)(3).

A. The Proposed Class Satisfies Rule 23(a)’s Requirements

Rule 23(a)’s first requirement, numerosity, is satisfied where “the class is so 

numerous that joinder of all members is impractical.” Fed. R. Civ. P. 23(a)(1). To 

																																																							 3 Plaintiff anticipates the potential need to revise the definition of the Class 

following the conclusion of discovery relating to the class certification issues.

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satisfy the numerosity requirement, a plaintiff need only demonstrate that “the 

number of potential class members is large, even if plaintiffs do not know the exact 

figure.” In re Consumers Power Co. Sec. Litig., 105 F.R.D. 583, 601 (E.D. Mich. 

1985); see Olden v. LaFarge Corp., 203 F.R.D. 254, 269 (E.D. Mich. 2001) aff’d, 

383 F.3d 495 (6th Cir. 2004) (“where the exact size of the class is unknown but 

general knowledge and common sense indicate that it is large, the numerosity 

requirement is satisfied.”); see Gradisher v. Check Enforcement Unit, Inc., 203 

F.R.D. 271, 276 (W.D. Mich. 2001) (“while not an absolute rule, it is generally 

accepted that a class of 40 or more members is sufficient to establish numerosity.”)

In this case, Plaintiff’s Complaint alleges that Defendant made unsolicited 

phone calls—specifically automated phone calls (i.e., “robocalls”)—to thousands 

of consumers throughout the country. (Compl. ¶¶ 16, 17, 22, 27); see Bacon v. 

Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004) (“[The] sheer number 

of potential litigants in a class, especially if it is more than several hundred, can be 

the only factor needed to satisfy Rule 23(a)(1).”). The present case therefore 

satisfies the numerosity requirement, since it affects thousands of consumers in the 

same way.

The second threshold to certification requires that “there are questions of law 

or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality is present 

where a “common nucleus of operative fact” exists, and a “question of law refers 

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to a standardized conduct of the defendants toward members of the proposed 

class.” See Snow v. Atofina Chemicals, Inc., 2006 WL 1008002, at *4 (E.D. Mich. 

Mar. 31, 2006) (“lack of identical factual situations will not necessarily preclude 

certification where the class representative has shown sufficient common questions 

of law among the claims of the class members.” (quoting Franklin v. City of 

Chicago, 102 F.R.D. 944, 949 (N.D. Ill. 1984)). For commonality to be 

demonstrated, “there need be only a single issue common to all members of the 

class.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996) (quotation 

omitted). Generally, the issue of commonality is a relatively low and easily 

surmountable hurdle. See Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 

185 (N.D. Ill. 1992); see also Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 

(5th Cir. 1986).

As alleged in Plaintiff’s Complaint, all members of the Class share common 

questions of law and fact that predominate over issues affecting only individual 

members. (Compl. ¶ 28.) Those common factual and legal issues for the Class 

include: (1) whether Defendant’s conduct violated the Telephone Consumer 

Protection Act, 47 U.S.C. § 227 (“TCPA”); (2) whether Defendant and/or its 

agents made calls featuring an artificial or pre-recorded voice; (3) whether 

Defendant and/or its agents systematically made phone calls to persons who did 

not previously provide Defendant and/or its agents with their prior express consent 

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to receive such phone calls; and (4) whether class members are entitled to treble 

damages based on the willfulness of Defendant’s conduct. (Id.) 

Rule 23 next requires that Plaintiff’s claims be typical of those of the Class. 

See Fed. R. Civ. P. 23(a)(3). The typicality requirement determines whether “a 

sufficient relationship exists between the injury to the named plaintiff and the 

conduct affecting the class,” and a plaintiff’s claim is typical if it arises “from the 

same event or practice or course of conduct that gives rise to the claims of other 

class members, and if his or her claims are based on the same legal theory.” In re 

Am. Med. Sys., Inc., 75 F.3d at 1082 (quotation omitted). Nevertheless, the 

existence of factual distinctions among named and absent class members will not 

preclude a finding of typicality if there is a “strong similarity of legal theories.” 

Int’l Union v. Ford Motor Co., 2006 WL 1984363 at *19 (E.D. Mich. July 13, 

2006) aff’d sub nom. Int’l Union, United Auto., Aerospace & Agr. Implement 

Workers of Am. v. Gen. Motors Corp., 497 F.3d 615 (6th Cir. 2007). 

In this case, Plaintiff’s claims are typical of the absent class members 

because each claim is based upon identical conduct—Defendant’s uniform practice 

of making unsolicited telephone calls to Plaintiff and the proposed Class. (Compl. 

¶ 29.) Plaintiff’s and the absent Class members’ claims against Defendant are the 

same. See id. Therefore, the typicality element is satisfied. 

The final Rule 23(a) prerequisite is that a proposed class representative 

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“fairly and adequately protectd the interests of the class.” Fed. R. Civ. P. 23(a)(4). 

In determining whether the representation of the class is adequate, “the 

representative must have common interests with unnamed members of the class,” 

and “it must appear that the representatives will vigorously prosecute the interests 

of the class through qualified counsel.” Senter v. Gen. Motors Corp., 532 F.2d 

511, 524–25 (6th Cir. 1976). Courts must also consider: “(a) the work counsel has 

done in identifying or investigating potential claims in the action, (b) counsel’s 

experience in handling class actions, other complex litigation, and claims of the 

type asserted in the action, (c) counsel’s knowledge of the applicable law, and (d) 

the resources counsel will commit to representing the class.” Fed. R. Civ. P. 

23(g)(1)(A); IUE-CWA v. Gen. Motors Corp., 238 F.R.D. 583, 592 (E.D. Mich. 

2006). 

In this case, Plaintiff has the same interests as the proposed Class—

obtaining relief from Defendant for the unlawful use of an automated telephone 

dialing system (“ATDS”) to systematically robocall Plaintiff and the members of 

the Class. (Compl. ¶ 31.) Moreover, Plaintiff’s counsel are well respected 

members of the legal community, have regularly engaged in major complex 

litigation, and have had extensive experience in consumer class actions involving 

similar issues and that were of similar size, scope and complexity as the present 

case. (See Firm Resume of Edelson PC, a true and accurate copy of which is 

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attached as Exhibit 1.) Accordingly, both Plaintiff and her counsel will adequately 

represent the Class.

B. The Proposed Class Satisfies the Requirements of Rules 23(b)(2) 

and (b)(3) 

Once the subsection (a) prerequisites are satisfied, a plaintiff seeking 

certification under Rule 23(b)(2) or 23(b)(3) must satisfy several additional 

requirements. Rule 23(b)(2) provides that the party or parties opposing 

certification must have acted or failed to act on grounds generally applicable to the 

proposed class “so that final injunctive relief or corresponding declaratory relief is 

appropriate. . . .” Fed. R. Civ. P. 23(b)(2); Little Caesar Enterprises, Inc. v. Smith, 

172 F.R.D. 236, 268 (E.D. Mich. 1997). Here, there should be no question that 

Defendant acted on grounds generally applicable to the proposed Class as a whole. 

Defendant made unsolicited telephone calls to the telephones of consumers 

nationwide—all without permission—in virtually an identical manner. Thus, 

Defendant acted and failed to act on grounds generally applicable to the Class as a 

whole, making final injunctive relief necessary to protect Plaintiff and the Class 

from such conduct in the future, and satisfying the requirements of Rule 23(b)(2).

Rule 23(b)(3) provides that a class action may be maintained where the 

questions of law and fact common to members of the proposed class predominate 

over any questions affecting only individual members. Fed. R. Civ. P 23(b)(3); In 

re Cardizem CD Antitrust Litig., 200 F.R.D. 326, 339 (E.D. Mich. 2001). In this 

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case, common issues of fact and law predominate. Defendant’s unlawful and 

systematic use of an ATDS to call Plaintiff and members of the proposed Class 

without their consent, is common to all Class members’ claims and predominates 

over any issues affecting only individual members. (Compl. ¶ 28.)

Rule 23(b)(3) further requires that the class action mechanism be superior to 

other available methods for the fair and efficient adjudication of the controversy. 

Fed. R. Civ. P 23(b)(3); In re Cardizem, 200 F.R.D. at 339. That requirement is 

satisfied here. The injuries suffered by individual Class members are likely to 

have been relatively small compared to the burden and expense of individual 

prosecution of the litigation necessitated by Defendant’s actions. (Compl. ¶ 32.) 

Thus, absent a class action, it would be difficult, if not impossible, for the 

individual members of the Class to obtain effective relief. Maintenance of this case 

as a class action is also superior to other available methods because it would avoid 

the necessity for multiple adjudications of identical legal and factual issues, 

thereby reducing the burden on the judiciary. (Id.)

For the reasons stated above, and which will be borne out by class discovery, 

this case is appropriate for class certification. Plaintiff hereby requests that the 

Court allow for and schedule discovery to take place on class-wide issues, at the 

conclusion of which, Plaintiff will file a memorandum in support of this motion 

detailing the appropriateness of class certification and asking the Court to rule on 

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this motion at that time.

WHEREFORE, Plaintiff Penny Rumsey, individually and on behalf of the 

proposed Class, respectfully requests that the Court (1) enter and reserve ruling on 

her Renewed Motion for Class Certification, (2) allow for and schedule discovery 

to take place on class-wide issues, (3) grant her leave to file a supplemental 

memorandum in support of her Motion for Class Certification upon the conclusion 

of class-wide discovery, (4) grant her Motion for Class Certification after full 

briefing of the issues presented herein, and (5) provide all other and further relief 

that the Court deems equitable and just.

Respectfully submitted, 

PENNY RUMSEY, individually and on 

behalf of all others similarly situated,

Dated: July 30, 2014 By: /s/ Ari J. Scharg

One of Plaintiff’s Attorneys

Ari J. Scharg

ascharg@edelson.com

John Ochoa

jochoa@edelson.com

Mark Eisen

meisen@edelson.com

EDELSON PC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Henry M. Scharg – P28804

hmsattyatlaw@aol.com

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LAW OFFICE OF HENRY M. SCHARG

718 Ford Building

Detroit, Michigan 48226

Tel: 248.596.1111

Fax: 248.671.0335

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CERTIFICATE OF SERVICE

I, Ari J. Scharg, hereby certify that on July 30, 2014, I electronically served 

the foregoing Plaintiff’s Re-Filed Motion for Class Certification on all counsel of 

record using the Court’s CM/ECF electronic filing system, and by placing a true 

and accurate copy of such paper in a postage prepaid envelope addressed to the 

persons shown below and depositing such envelope in the U.S. Mailbox located at 

350 North LaSalle, Chicago, Illinois 60654, on this 30th day of July 2014.

Birch Communications, Inc.

c/o Corporation Service Company

40 Technology Parkway South, Suite 300

Norcross, Georgia 30092

/s/ Ari J. Scharg

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