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Neal v. Wal-Mart Stores, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

July 25, 2019

Curtis Neal, on behalf of himself and all others similarly situated, Plaintiff,
v.
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,
v.
Synchrony Bank, Defendant. Barbara Mott, on behalf of herself and all others similarly situated, Plaintiff,
v.
Synchrony Bank, Defendant.

          ORDER

          KENNETH D. BELL UNITED STATES DISTRICT JUDGE.

         This 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).

         For the 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.

         I. Relevant Background

         Curtis 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 as follows:

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 certification.
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 class certification.

         Campbell 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 as:[1]

(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.

         Over Campbell's objection, the Northern District of New York transferred Campbell's case to this Court on September 13, 2018. (Doc. No. 63).

         The 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.

         With 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.

         II. ...


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