ARI WEITZNER; ARI WEITZNER MD PC, Individually and on behalf of all others similarly situated, Appellants
SANOFI PASTEUR INC, formerly known as Aventis Pasteur Inc.; VAXSERVE INC, formerly known as Vaccess America, Inc.
September 27, 2018
Appeal from the United States District Court for the Middle
District of Pennsylvania District Court No. 3-11-cv-02198
District Judge: The Honorable A. Richard Caputo
C. Bank [ARGUED], Paul T. Kelly, Daniel A. Osborn Counsel for
J. Greco [ARGUED] Counsel for Appellees.
Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit
Dr. Ari Weitzner and his professional corporation, Ari
Weitzner M.D. P.C., challenge the District Court's
conclusion on summary judgment that their claims under the
Telephone Consumer Protection Act (TCPA) were untimely. There
is no dispute that plaintiffs' TCPA claims-brought
individually and on behalf of a proposed class-are untimely
unless tolling applies. As a result, the primary question
before this Court is whether tolling is available under
American Pipe & Construction Co. v. Utah, 414
U.S. 538 (1974).
Pipe provides that the timely filing of a class action
tolls the applicable statute of limitations for putative
class members until the propriety of maintaining the class is
determined. Id. at 554. This tolling is an equitable
remedy that promotes both the efficiency and economy goals of
Federal Rule of Civil Procedure 23 by encouraging class
members to rely on the named plaintiff's filings and
protects unnamed class members who may have been unaware of
the class action.
argue that a previous state court putative class action
brought by Dr. Weitzner, involving the very same claims
raised in this case, tolled the statute of limitations such
that Dr. Weitzner and his P.C. should be allowed to pursue
their claims anew in federal court. Specifically, plaintiffs
raise three categories of claims, each of which they assert
is timely under American Pipe: (1) purported class
claims; (2) Dr. Weitzner's individual claims; and (3)
Weitzner P.C.'s individual claims. For the reasons
outlined below, we decline to extend American Pipe
tolling to each category of plaintiffs' claims and agree
with the District Court that plaintiffs' claims are
also challenge the District Court's application of Middle
District of Pennsylvania Local Rule 56.1. Finding no error in
the District Court's application of the Rule, we will
uphold the District Court's ruling on this issue as well.
Weitzner is a physician who maintains a practice in New York.
Dr. Weitzner is, and has always been, the sole shareholder of
co-plaintiff Weitzner P.C.
the events at issue in this case, Dr. Weitzner practiced
through the P.C. At the present time, the P.C. has neither
assets nor any ongoing business, yet remains legally active
under New York law.
April 21, 2004 and March 22, 2005, Sanofi Pasteur, Inc., the
vaccines division of the pharmaceutical company Sanofi, and
VaxServe, Inc., a healthcare supplier, sent two unsolicited
faxes to a fax machine located in Dr. Weitzner's office.
Based on the receipt of these two faxes, Dr. Weitzner filed a
putative class action against Sanofi Pasteur and VaxServe in
the Court of Common Pleas of Lackawanna County, Pennsylvania.
state court action, Dr. Weitzner alleged that defendants
transmitted thousands of faxes in violation of the TCPA, 47
U.S.C. § 227(b)(1)(C), including at least one fax sent
to Dr. Weitzner. The proposed class included all individuals
"who received an unsolicited facsimile advertisement
from defendants between January 2, 2001[, ] and the date of
the resolution of this lawsuit." On June 27, 2008, the
Court of Common Pleas denied class certification,
after which the case proceeded as an individual action by Dr.
Weitzner against defendants. There has yet to be a final
judgment in the state court case. It is undisputed that
defendants stopped sending unsolicited faxes in April 2005.
than three years after denial of class certification in the
state action, and over six years after defendants sent any
unsolicited faxes, Plaintiffs filed this case in the Middle
District of Pennsylvania on November 26, 2011. Plaintiffs
brought individual claims based on the same two faxes sent on
April 21, 2004, and March 22, 2005, along with class claims
substantially similar to those alleged in the state court
District Court concluded that the four-year federal default
statute of limitations under 28 U.S.C. § 1658 applies to
claims under the TCPA. On appeal, the parties do not dispute
the application of the four-year statute of limitations. The
statute of limitations for claims arising from the two faxes
actually sent to plaintiffs therefore ran in 2008 and 2009,
respectively, and the statute of limitations for any class
claims had similarly elapsed by April 2009. Accordingly,
there is no dispute that all of these claims are untimely
absent tolling. Plaintiffs rely on Dr. Weitzner's 2005
state court action-in which Dr. Weitzner initiated suit as
the named plaintiff in a putative class action and which he
continues to pursue on an individual basis-as the means for
tolling the statute of limitations as Dr. Weitzner and his
P.C. attempt to bring the same claims in the District Court.
moved for summary judgment on statute of limitations grounds
and filed an accompanying statement of material facts
pursuant to Local Rule 56.1. Plaintiffs filed their opposition
to defendants' motion for summary judgment and their
answer to defendants' statement of material facts.
Defendants moved to strike plaintiffs' answer to the
statement of facts for noncompliance with Local Rule 56.1.
Defendants argued, in part, that portions of the answer were
argumentative in violation of Local Rule 56.1.
District Court granted defendants' motion to strike
plaintiffs' answer to the statement of facts in part,
striking 19 responses from the answer for noncompliance with
Local Rule 56.1 because they were not concise and were
argumentative. In the same order, the District Court granted
defendants' motion for summary judgment, concluding that
American Pipe tolling did not apply to
plaintiffs' class or ...