Opinion
2:23-cv-00687-JCC
07-11-2024
KELLY USANOVIC, individually, and on behalf of all others similarly situated, Plaintiff, v. EXP REALTY, LLC, a Washington limited liability company, Defendant.
KAUFMAN P.A. Avi R. Kaufman Eric Draluck Attorneys for Plaintiffs. McGUIRE WOODS LLP Sarah A. Zielinski Amy Starinieri Gilbert ELLIS, Li & MCKINSTRY PLLC Nathaniel L. Taylor, Attorneys for Defendant eXp Realty, LLC.
KAUFMAN P.A. Avi R. Kaufman Eric Draluck Attorneys for Plaintiffs.
McGUIRE WOODS LLP Sarah A. Zielinski Amy Starinieri Gilbert ELLIS, Li & MCKINSTRY PLLC Nathaniel L. Taylor, Attorneys for Defendant eXp Realty, LLC.
[PROPOSED] ORDER APPROVING STIPULATION REGARDING NUMEROSITY
James L. Robart United States District Judge.
THIS MATTER comes before the Court on the Parties' Joint Motion to Approve the Parties' Stipulation Regarding Numerosity for Purposes of Plaintiff's Anticipated Motion for Class Certification (ECF No. 37) (the "Motion"). The Court, having considered the Motion and Stipulation, and being familiar with the files and pleadings in this matter, is fully advised.
NOW THEREFORE, the Parties' Motion is GRANTED and the Stipulation Regarding Numerosity is hereby APPROVED.
IT IS SO ORDERED.
STIPULATION REGARDING NUMEROSITY FOR PURPOSES OF PLAINTIFF'S ANTICIPATED MOTION FOR CLASS CERTIFICATION
1. Plaintiff, Kelly Usanovic ("Plaintiff") and Defendant eXp Realty, LLC ("eXp"), collectively the "Parties," by and through their respective counsel, subject to the Court's approval, and for the purpose of limiting burdensome class discovery prior to class certification, hereby stipulate and agree for the purposes of the above-captioned action only, as follows (the "Stipulation"):Plaintiff anticipates filing a motion for class certification pursuant to Fed.R.Civ.P. 23 in the above-captioned matter. Plaintiff anticipates defining the putative class as: All persons in the United States who from four years prior to the filing of this action through class certification (1) one or more eXp real estate agents called more than one time in the aggregate using a dialer from Mojo, Vulcan7, or RedX, or a substantially similar dialer, (2) as a result of being obtained as a lead from Mojo, Vulcan7, or RedX, or a substantially similar lead provider, (3) within any 12-month period, (4) where the person's residential telephone number had been listed on the National Do Not Call Registry for at least thirty days, (5) for substantially the same reason eXp's real estate agents called Plaintiff. eXp intends to dispute that this class or any other class meets the requirements for certification.
2. For the exclusive purpose of Plaintiff's anticipated motion for class certification pursuant to Fed.R.Civ.P. 23, eXp agrees to stipulate that the element of numerosity is satisfied. eXp also agrees not to challenge class certification based on the absence of evidence that could only have been developed if Plaintiff had obtained a complete set of records of calls or leads by eXp real estate agents to putative class members. Notwithstanding the foregoing, eXp does not waive any other argument or position that a class should not be certified in the above-captioned action. eXp expressly preserves its right to raise any other argument or position in opposition to Plaintiff's motion for class certification, including but not limited to arguments or positions related to adequacy, commonality, typicality, predominance, superiority, ascertainability, and the feasibility of the methodology employed to identify class members.
3. Plaintiff agrees that, unless and until a class action is certified, she will limit any third party subpoenas for call or lead records to call and lead records associated with calls by the three eXp real estate agents that called Plaintiff, Ali Shahrohki, Carlos Mezquitan, and Igor Li. Plaintiff also agrees to advise any third parties to which broader subpoenas have already been issued regarding this agreed upon limitation. To the extent Plaintiff has already received records for any other real estate agents, Plaintiff agrees to not use those records unless and until a class action is certified.
4. If a class action is certified, eXp agrees that Plaintiff is entitled to obtain through third party subpoenas, and if necessary to compel production of, all call and lead records associated with all calls by eXp real estate agents to members of the class certified by the Court, even if the deadline to complete discovery has already passed at the time certification is granted.
5. If a class action is certified, eXp agrees to provide the dates of affiliation with eXp for any real estate agent for whom Plaintiff obtains or has obtained records and for whom eXp has records.
6. By entering into this Stipulation, eXp does not waive any argument or position that it is not liable. eXp may continue to present all available defenses in the above-captioned action.
7. This Stipulation can only be used in the above-captioned action and cannot be used for any other purpose or in any other case.
8. By entering into this Stipulation, the attorneys for both Plaintiff and eXp represent and warrant that that their clients have agreed to the binding nature of this Stipulation, and that they have the authority to enter into the stipulation in the above-captioned action on behalf of their respective clients.