Mark LEYSE, individually and on behalf of all others similarly situated, Plaintiff-Appellant-Cross-Appellee, v. LIFETIME ENTERTAINMENT SERVICES, LLC, Defendant-Appellee-Cross-Appellant.
Nos. 16-1133-cv, 16-1425-cv
United States Court of Appeals, Second Circuit.
February 15, 2017
PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges.
The District Court did not clearly err in finding that Orden sufficiently both communicated the terms of the plea to Rodriguez and advised him about it. We have previously noted that a defendant might bring a plausible claim for habeas relief “by arguing that trial counsel did not effectively communicate the government‘s plea offer because of a language barrier.” Diaz v. United States, 633 Fed. Appx. 551, 556 (2d Cir. 2015) (summary order). When counsel has informed a client of a plea offer and advised the client on its merits in light of the strength of the government‘s case, however, we have found no constitutional deficiency. See id.; Purdy v. United States, 208 F.3d 41, 47 (2d Cir. 2000). Here, Rodriguez himself testified that Orden relayed the plea offer, told him that the offer was for thirty years, and said that if Rodriguez went to trial he could face a sentence longer than thirty years. The District Court was entitled to credit Orden‘s testimony that Rodriguez repeatedly declared that he would not accept a plea offer calling for more than eight years’ imprisonment and refused to hear more about the plea offer upon being informed by Orden that it called for approximately thirty years’ imprisonment. Orden further testified that he believed Rodriguez fully understood his advice about the offer. In keeping with this conclusion, we also note the record evidence that, although Orden typically brought a Spanish interpreter when meeting with Rodriguez, Orden and Rodriguez communicated at counsel table during trial without an interpreter‘s aid. The District Court‘s conclusion that Rodriguez understood the offer and the advice to take it was not clearly erroneous, and the habeas petition was properly denied.
* * *
We have considered petitioner‘s remaining arguments on appeal and find them to be without merit. The judgments of the District Court are AFFIRMED.
APPEARING FOR APPELLEE: STEPHEN M. RUMMAGE, Davis Wright Tremaine LLP, Seattle, Washington (Sharon L. Schneier, Eric J. Feder, Davis Wright Tremaine LLP, New York, New York, on the brief).
Plaintiff Mark Leyse appeals the denial of class certification and entry of judgment on his individual claim under the Telephone Consumer Protection Act (“TCPA“), see
1. Standing
Lifetime contends that Leyse cannot show the injury in fact necessary for standing. See, e.g., Strubel v. Comenity Bank, 842 F.3d 181, 188-89 (2d Cir. 2016) (recognizing “injury in fact” as necessary element of Article III standing). To demonstrate injury in fact, a plaintiff must show the “invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); accord Strubel v. Comenity Bank, 842 F.3d at 188. Congress may by statute define and confer upon individuals a legally protected interest, but even in such cases, “a plaintiff only has standing to sue if she can allege concrete and particularized injury to that interest.” Strubel v. Comenity Bank, 842 F.3d at 188.
We need not here decide whether the alleged violation of
Accordingly, we affirm the district court‘s standing determination.
2. Class Certification
Leyse argues that the district court abused its discretion in denying, on ascertainability grounds, his motion to certify a class composed of “all persons to whose residential telephone lines [Lifetime] or a third party acting on its behalf initiated” the challenged prerecorded message. Our precedent identifies “ascertainability” as an “implied requirement” for class certification under
Leyse proposed to identify class members by soliciting individual affidavits certifying receipt of the prerecorded call accompanied by telephone bills showing subscription to New York City residential telephone service in August 2009. Leyse adduced no evidence that this method employed objective criteria, was administratively feasible, or permitted ready identification of members. The district court consequently concluded that, under Brecher, the proposed class was unascertainable because (1) no list of the called numbers existed, see Leyse v. Lifetime Entm‘t Servs., No. 13 CIV. 5794 AKH, 2015 WL 5837897, at *5 (S.D.N.Y. Sept. 22, 2015); (2) no such list was likely to emerge, see id.; and (3) (as further explained in the order denying reconsideration) proposed class members could not “realistically be expected to recall a brief phone call received six years ago or ... to retain any concrete documentation” of such receipt, App‘x 172-73.1 Although a list of class members will not always be necessary to render a class ascertainable, we identify no abuse of discretion in this finding that Leyse had failed to show a sufficiently reliable method for identifying the proposed class to avoid “mini-hearing[s] on the merits of each case.” Brecher v. Republic of Argentina, 806 F.3d at 25 (internal quotation marks omitted).
Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240 (N.D. Ill. 2014), upon which Leyse relies, is not to the contrary. There, plaintiff already possessed a list of telephone numbers associated with the defendant in proposing to use affidavits and phone records to document each individual call received and the telephone number of each caller. Id. at 248. No such list exists here. Moreover, Leyse proposes to supplement affidavits with records showing only subscription to residential telephone service, not the receipt of particular calls. Thus, the district court acted within its discretion in denying certification based on the inability to ascertain the class.
3. Entry of Judgment
Leyse contends that the district court erred in entering judgment on his individual claim upon Lifetime‘s depositing with the clerk of court the full amount of damages and costs recoverable by Leyse under the TCPA, even though Leyse had
Leyse argues that Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), abrogated these precedents. The argument fails because Campbell-Ewald Co. held only that “an unaccepted settlement offer or offer of judgment does not moot a plaintiff‘s case,” and therefore a district court “retain[s] ju-risdiction” to adjudicate it. Id. at 162. In so holding, the Court expressly stated that its holding did not extend to cases in which a defendant “deposits the full amount of the plaintiff‘s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.” Id. Because that is the precise scenario at issue here, we conclude that Campbell-Ewald Co. does not undermine the controlling effect of Tanasi and similar precedents permitting the entry of judgment under these circumstances.2 We therefore affirm the district court‘s entry of judgment on Leyse‘s individual claim.3
We have considered Leyse‘s remaining arguments and conclude that they are without merit. Accordingly, the April 12, 2016 judgment of the district court is AFFIRMED.