United States District Court, D. Massachusetts
JACQUELINE BRENNER, on behalf of herself and all others similarly situated, Plaintiff
WILLIAMS-SONOMA, INC., Defendant.
MEMORANDUM AND ORDER
April 15, 2013, plaintiff Jacqueline Brenner brought this
class action against defendant Williams-Sonoma, Inc.
("Williams-Sonoma") . Ms. Brenner sought to
represent a class of consumers whose zip codes were collected
unlawfully by Williams-Sonoma on or after April 15, 2009. Ms.
Brenner died on June 28, 2015. Ms. Brenner's husband,
Ronald Brenner, moved to substitute himself as plaintiff in
his capacity as executor of Ms. Brenner's estate.
See Docket No. 77. He also moved to amend the class
definition and add himself as a plaintiff in his individual
capacity. See id.
Judge Judy Dein issued the attached Report and
Recommendation. See Docket No. 96
("R&R") . In it, she recommends denying both of
Mr. Brenner's motions. Mr. Brenner has objected to that
recommendation. See Docket No. 99 ("Obj."); Docket
No. 106 ("Rep. in Supp. of Obj."). After careful
consideration of Mr. Brenner's objections, the court is
adopting the Magistrate Judge's Report and
Recommendation, and denying Mr. Brenner's motion to
substitute and motion for leave to amend. In addition,
because there is no longer a plaintiff to represent the class
in this case, it is being dismissed without prejudice.
STANDARD OF REVIEW
72(b)(3) of the Federal Rules of Civil Procedure requires the
court to review "de novo any part of the magistrate
judge's disposition that has been properly objected
to." "Conclusory objections that do not direct the
reviewing court to the issues in controversy" are not
proper under Rule 72(b). Velez-Padro v. Thermo King De
Puerto Rico, Inc., 465 F.3d 31, 32 (1st Cir. 2006).
Waiver of de novo review by failing to file proper
objections does not entitle a party to "some lesser
standard" of review. Thomas v. Arn, 474 U.S.
140, 149-50 (1985); see also Costa v. Hall, No.
00-12213-MLW, 2010 WL 5018159, at *17 (D. Mass. Dec.2, 2010)
("Absent objections, the court may adopt the report and
recommendation of the magistrate judge."). However,
review by the court in such circumstances is not prohibited,
and some level of oversight, even if not de novo, is
encouraged. See Henderson v. Carlson, 812 F.2d 874,
878 (3rd Cir. 1987) .
The Motion to Substitute
Magistrate Judge concluded that Ms. Brenner's claims did
not survive her death. See R&R at 8-14.
Accordingly, she recommends denying Mr. Brenner's motion
to substitute himself as plaintiff in his capacity as
executor of Ms. Brenner's estate. See id. Mr.
Brenner has not objected to that recommendation. Moreover,
the court finds the Magistrate Judge's analysis to be
thorough, thoughtful, and persuasive. Accordingly, the court
is adopting her recommendation and denying Mr. Brenner's
motion to substitute.
The Motion for Leave to Amend
Magistrate Judge concluded that Mr. Brenner's motion for
leave to amend is futile because the claims he seeks to
assert are barred by the statute of limitations. Mr.
Brenner's claims arise under Mass. Gen. Laws c. 93A,
§9 ("Chapter 93A"). Chapter 93A claims are
subject to a four-year limitations period. See
M.G.L. c. 260, §5A. A Chapter 93A claim accrues "at
the time injury results from the assertedly unfair or
deceptive acts." Cambridge Plating Co. v. Napco,
Inc., 991 F.2d 21, 25 (1st Cir. 1993) (citing
Int'l Mobiles Corp. v. Corroon & Black/Fairfield
& Ellis, Inc., 29 Mass.App.Ct. 215, 220-21 (1990)).
The collection of zip codes in violation of Mass. Gen. Laws
c. 93, §105(a) constitutes an "unfair or deceptive
act, " and the "receipt by a consumer of unwanted
marketing materials" constitutes an injury. Tyler v.
Michaels Stores, Inc., 464 Mass. 492, 504 (2013). Mr.
Brenner first received unwanted marketing materials from
Williams-Sonoma on November 23, 2004. The Magistrate Judge
determined that his claims accrued on that date and,
therefore, were untimely as of November 24, 2008.
See R&R at 18-19. The court agrees.
case was filed in 2013, the claims Mr. Brenner seeks to
assert, individually and as a class representative, are
time-barred. Therefore, the proposed amendment would be
Brenner argues that the Magistrate Judge incorrectly
calculated the date of accrual under the Massachusetts
discovery rule. See Obj. at 3-5. Under the discovery
rule, "where a plaintiff has suffered an 'inherently
unknowable' wrong, for accrual to occur, a plaintiff must
have knowledge or sufficient notice of two related facts: (1)
that he was harmed; and (2) that his harm was caused by the
defendant's conduct." Harrington v.
Costello, 4 67 Mass. 720, 725 (2014). Mr. Brenner argues
that his claim did not accrue until he knew "that
[Williams-Sonoma] obtained [his] address though the illegal
collection of his zip code." Obj. at 4. This contention
is incorrect. "[A]ccrual under the discovery rule is not
delayed until a plaintiff learns that he was legally
harmed." Harrington, 467 Mass. at 729
(discovery rule did not toll limitations period, where
plaintiff was defamed in 2005, but did not know defamation
was legally actionable until 2007); Williams v. Ely,
423 Mass. 467, 473 (1996) (in medical malpractice action,
"plaintiff need not know . . . that the defendant was
negligent for the cause of action to accrue"). Mr.
Brenner's claims accrued when he learned "that [he]
'sustained appreciable harm as a result of the
[William-Sonoma's] conduct.'" RTR Techs.,
Inc. v. Helming, 707 F.3d 84, 90 (1st Cir. 2013)
(quoting Williams, 423 Mass. at 473)). That occurred
on November 23, 2009.
Brenner also argues that the Magistrate Judge erred by
declining to applying the continuing violation doctrine.
See Obj. at 4; Rep. in Supp. of Obj. at 4-5. Under
the "continuing violation" doctrine, if a defendant
engages in continuous or repeated unlawful acts, each such
act "rewinds the clock" for limitations purposes.
Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179,
183 (1st Cir. 1989). To establish a continuing violation,
"[at least one] act that falls within the limitations
period must itself constitute an actionable violation."
Centro Medico del Turabo, Inc. v. Feliciano de
Melecio, 406 F.3d 1, 7 (1st Cir. 2005). "[T]he
ongoing injuries or harmful effects of a single unlawful act
do not extend the limitations period." Asociacion de
Suscripcion Conjunta del Seguro de Responsabilidad
Obliqatorio v. Juarbe-Jimenez, 659 F.3d 42, 51 (1st Cir.
2011). Mr. Brenner argues that Williams-Sonoma violated
Chapter 93A each time it mailed him unwanted marketing
materials, and that the last such mailing occurred within the
limitations period. See Rep. in Supp. of Obj. at 5
& n.5. The receipt of unwanted marketing materials is an
injury that may arise from a violation of §105(a). See
Tyler, 464 Mass. at 503-04. However, Mr. Brenner
cites no authority for the proposition that ...