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Weitzner v. Sanofi Pasteur Inc.

United States Court of Appeals, Third Circuit

November 27, 2018

ARI WEITZNER; ARI WEITZNER MD PC, Individually and on behalf of all others similarly situated, Appellants
v.
SANOFI PASTEUR INC, formerly known as Aventis Pasteur Inc.; VAXSERVE INC, formerly known as Vaccess America, Inc.

          Argued September 27, 2018

          On 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

          Todd C. Bank [ARGUED], Paul T. Kelly, Daniel A. Osborn Counsel for Appellants.

          Carl J. Greco [ARGUED] Counsel for Appellees.

          Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges

          OPINION

          SMITH, Chief Judge.

         Plaintiffs 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).

         American 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.

         Plaintiffs 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 untimely.

         Plaintiffs 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.

         I. Background[1]

         Dr. Ari 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.

         During 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.

         On 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.

         In the 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, [2] 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.

         More 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 action.[3]

         The 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.[4] 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.

         Defendants moved for summary judgment on statute of limitations grounds and filed an accompanying statement of material facts pursuant to Local Rule 56.1.[5] 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.

         The 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 ...


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