United States District Court, W.D. North Carolina, Charlotte Division
Curtis Neal, on behalf of himself and all others similarly situated, Plaintiff,
Wal-Mart Stores, Inc. d/b/a Walmart and Synchrony Bank, f/k/a GE Capital Retail Bank, Defendants. Roy Campbell, on behalf of himself and all others similarly situated, Plaintiff,
Synchrony Bank, Defendant. Barbara Mott, on behalf of herself and all others similarly situated, Plaintiff,
Synchrony Bank, Defendant.
KENNETH D. BELL UNITED STATES DISTRICT JUDGE.
matter is before the Court on two motions in three
consolidated putative class action cases - Neal v.
Wal-Mart Stores, et al., 3:17-cv-00022
(“Neal”); Campbell v. Synchrony Bank,
3:18-cv-00501 (“Campbell”); and Mott v.
Synchrony Bank, 3:18-cv-00221 (“Mott”) -
which assert claims against defendants Wal-Mart Stores, Inc.
(“Wal-Mart”) and Synchrony Bank
(“Synchrony”) under the Telephone Consumer
Protection Act (“TCPA”). Plaintiffs Neal and Mott
have moved the Court to appoint their counsel, Greenwald
Davidson Radbil PLLC (“GDR”) and Terrell Marshall
Law Group PLLC (“TMLG”), as Interim Lead Counsel
for the consolidated actions (Doc. No. 43), and Plaintiff
Campbell has moved to appoint his counsel, Lemberg Law LLC
(“Lemberg”), as Interim Lead Counsel and to stay
the Mott case (Doc. No. 45).
reasons discussed further below, the Court will
GRANT the motion to stay the Mott case
because it effectively duplicates the earlier filed Neal
case. However, the Court will DENY both
motions seeking the appointment of Interim Lead Counsel prior
to Class Certification (if any class is ultimately certified)
because the Court finds that neither counsel for Neal or
Campbell is likely to be able to fully represent the
interests of the different putative classes in the respective
actions in light of their currently divergent views of the
proper scope of the putative classes and their underlying
interpretation of the TCPA. Also, it is regrettably apparent
that counsel for Neal and Campbell are unable to work
together cooperatively such that it would be efficient to
appoint them to serve as co-Interim Lead Counsel. However,
consistent with the earlier Order of this Court consolidating
these cases for discovery, (Doc. No. 41) the Court will enter
a Pretrial Order and Case Management Plan that requires the
parties to conduct discovery to avoid, as much as possible,
multiple, duplicative discovery requests and effort.
Neal filed the first of the three cases on January 17, 2017,
naming Wal-Mart and later Synchrony as defendants. Neal's
claims are based on allegations that he received telephone
calls that were not intended for him from Synchrony, which
used an automatic telephone dialing system to make the calls.
Neal further alleges that he is not, nor was he, one of
Synchrony's customers nor did he give Synchrony prior
consent to place calls to his cellular telephone number by
using an automatic telephone dialing system. Neal alleges
that this conduct, more fully detailed in his complaint,
violates the TCPA, and he seeks to represent a class defined
Class: All persons and entities throughout the
United States (1) to whom Synchrony Bank placed one or more
calls, (2) directed to a telephone number assigned to a
cellular telephone service, but not assigned to a Synchrony
Bank customer; (3) by using an automatic telephone dialing
system, or an artificial or prerecorded voice,
(4) from December 20, 2016 through the date of class
certification, or where the first such call was placed on or
after June 17, 2016 and through the date of class
Subclass: All persons and entities throughout the
United States (1) to whom Synchrony Bank placed one or more
calls, on behalf of Wal-Mart Stores, Inc., (2) directed to a
telephone number assigned to a cellular telephone service,
but not assigned to a Synchrony Bank customer; (3) by using
an automatic telephone dialing system, or an artificial or
prerecorded voice, (4) from December 20, 2016 through the
date of class certification, or where the first such call was
placed on or after June 17, 2016 and through the date of
is the second filed case. On January 25, 2017, Campbell filed
his complaint in the Northern District of New York (No.
1:17-cv-00080) against defendant J.C. Penney, later
substituting Synchrony Bank as the defendant. Campbell
generally alleges that Synchrony violated the TCPA by placing
automated telephone calls to Campbell on his cellular
telephone and continuing to call him even after he told the
Synchrony representative that he was not the person Synchrony
was trying to call and expressly requested that Synchrony
stop calling him. Campbell seeks to represent a class defined
(1) All persons in the United States (2) to whose cellular
telephone number (3) Synchrony placed a non-emergency
telephone call (4) using an autodialer or a prerecorded voice
(5) after said person had advised Synchrony or their vendor
that the call was to a wrong number.
Campbell's objection, the Northern District of New York
transferred Campbell's case to this Court on September
13, 2018. (Doc. No. 63).
final case filed was Mott, which was not filed until over a
year later, on February 2, 2018 in the Middle District of
Florida. Ms. Mott similarly alleges that she received
unwanted telephone calls from Synchrony in error and asked
Synchrony not to call her again. She seeks, however, only to
represent the same class as Neal. Mott voluntarily asked to
have her case transferred to the Western District of North
Carolina, and on April 25, 2018, the Middle District of
Florida transferred Mott's action to this Court. See
Mott, Docs. 31-32.
respect to the most recent proceedings in this District, on
October 24, 2018 the Court ordered the cases consolidated for
discovery, required counsel for the plaintiffs to confer to
create a leadership structure for the consolidated cases and
submit a discovery plan to the Court within 30 days. (Doc.
No. 41). Although the parties submitted a proposed discovery
plan on November 21, 2018, plaintiffs' counsel could not
agree on how to proceed cooperatively and then did nothing
further to pursue their claims. Accordingly, the parties
recently informed the Court at the hearing on these motions
on July 23, 2019, over eight months later, that no discovery
has been pursued by any party and, disappointingly, the case
for all practical purposes sits idling in the same place as
it did when the proposed discovery plan was submitted.