Cook v. Progressive Casualty Insurance Company

DeUNITED STATES DISTRICT COURT July 15, 2025

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

KELLY COOK and ESTHER KELLEY- §

COOK, individually and on behalf of all §

others similarly situated, §

Plaintiffs, §

§

VS. § CIVIL ACTION NO. 4:24-cv-4423

§

PROGRESSIVE CASUALTY INSURANCE §

COMPANY, et al., §

§

Defendants.

MEMORANDUM AND ORDER

Before the Court is Plaintiffs’ Motion for Reconsideration of the Court’s dismissal of their

class claims against Defendant the Law Offices of Kanner & Pintaluga, P.A. (“K&P”). Doc. 68.

For the reasons below, the motion is DENIED.

I. BACKGROUND

This putative class action arises from alleged unlawful attorney solicitation following a minor

motor vehicle accident involving Plaintiffs on October 15, 2024. According to the Second

Amended Complaint, two days after the accident, Mrs. Kelley-Cook received an unsolicited

telephone call from an individual inquiring about the accident. Doc. 46 at ¶¶ 22-24. During this

call, Mrs. Kelley-Cook allegedly handed the phone to her husband, Mr. Cook, who was then

offered "$10,000 to sign up with K&P" for legal representation. Id. A second call to Mrs. Kelley-

Cook on October 22, 2024 purportedly came from an individual identifying himself as a K&P

representative who stated that Progressive Casualty Insurance Company ("Progressive") had

provided Plaintiffs' contact information to K&P. Id. at ¶ 24.

Plaintiffs allege K&P systematically obtains protected driver information through third-party

intermediaries referred to as "case runners" to solicit accident victims in violation of Texas barratry

laws (Tex. Penal Code § 38.12) and ethical rules (Tex. Disciplinary Rules of Professional Conduct

7.03). Id at ¶¶ 28, 51. The Second Amended Complaint asserts three causes of action: (1) barratry

under Texas Government Code § 82.0651; (2) civil conspiracy; and (3) a request for injunctive

relief to halt the alleged solicitation scheme. Id. at ¶¶ 49-65).

On June 16, 2025, following a hearing, the Court granted in part K&P's Second Motion to

Dismiss (Doc. 54). The Court's order: (1) dismissed all claims except Mrs. Kelley-Cook's

individual barratry claim; (2) struck the class allegations as unascertainable; and (3) denied leave

for further amendment. See Minute Entry entered June 16, 2025. In its ruling, the Court found that

Mr. Cook lacked Article III standing because he was not the direct recipient of the calls and

suffered no concrete injury. Id. The Court further held the proposed class was unascertainable due

to the need for individualized inquiries into each alleged solicitation. Id.

Plaintiffs now move for reconsideration under Federal Rule of Civil Procedure 59(e), arguing

the dismissal of their class claims was premature and lacked the "rigorous analysis" required by

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Doc. 68.

II. STANDARD OF REVIEW

Relief under Rule 59(e) is an "extraordinary remedy that should be used

sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Reconsideration may

be granted only where the movant demonstrates: (1) an intervening change in controlling law; (2)

the availability of newly discovered evidence that could not have been discovered earlier through

the exercise of due diligence; or (3) the need to correct a clear error of law or fact to prevent

manifest injustice. Fed. R. Civ. P. 59(e); Schiller v. Physicians Res. Grp., 342 F.3d 563, 567-568

(5th Cir. 2003).

Notably, Rule 59(e) motions cannot be used to relitigate issues already decided or to

advance arguments that could have been raised earlier. Simon v. United States, 891 F.2d 1154,

1159 (5th Cir. 1990) (quoting Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th

Cir.1986)). The party seeking reconsideration bears a "high burden" to show that extraordinary

circumstances justify revisiting the Court's prior decision. United States v. Salinas, 665 F.Supp.2d

717, 720 (W.D. Tex. 2009).

III. ANALYSIS

Plaintiffs argue the Court erred in dismissing their class claims because (1) the dismissal was

premature, as no discovery had been conducted on class ascertainability, and (2) the Court failed

to provide a “rigorous analysis” of the class issues. Neither argument justifies reconsideration.

A. The Dismissal Was Not Premature

Plaintiffs first argue the Court erred by dismissing their class allegations prior to discovery,

contending such determinations are generally premature before class certification briefing. Doc.

68 at 3-5. While it is true that courts typically address class certification after discovery, dismissal

at the pleading stage is appropriate where, as here, the complaint demonstrates inherent barriers to

certification. See Hogans v. Charter Communs., Inc., 563 F. Supp. 3d 464 (E.D.N.C. 2021). The

Fifth Circuit has expressly held that "[w]here it is facially apparent from the pleadings that there

is no ascertainable class," district courts may dismiss class allegations before certification. John v.

Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007).

Although the parties raise other issues related to class certification, the briefing largely

focuses on the issue of ascertainability. It is a matter of clear precedent that, to maintain a class

action, the proposed class must be adequately defined and clearly ascertainable by reference to

objective criteria. Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th Cir. 2012).

Indeed, while the Court need know the identity of each class member, the class definition must be

sufficiently definite in that it is administratively feasible for the court to determine whether a

particular individual is a member. Carroll v. SGS Auto. Servs., No. 16-537-SDD-RLB, 2020 U.S.

Dist. LEXIS 223674 at *7 (M.D. La. Nov. 30, 2020). The Court must be able to make this

determination without having to answer numerous fact-intensive questions. Morrow v.

Washington, 277 F.R.D. 172 (E.D. Tex. 2011). "Class allegations may be dismissed pursuant to

a Rule 12(b)(6) motion to dismiss if the nonexistence of an ascertainable class of persons to be

represented is 'facially apparent from the pleadings.'" Sharp Mexican Partners, LP v. Republic

Waste Servs. of Texas, Ltd., No. 3:17-CV-1605-S, 2018 U.S. Dist. LEXIS 145469, 2018 WL

4053365, at *3 (N.D. Tex. Aug. 24, 2018). Courts in this circuit have previously granted motions

to strike class allegations where membership of the "proposed class cannot be determined without

first inquiring into the substantive merits of each individual claim," because such

a class is not ascertainable. In re Vioxx Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 95097, 2008

WL 4681368, at *9-10 (E.D. La. Oct. 21, 2008).

The proposed class consists of "all Texas citizens whose vehicles were involved in motor

vehicle crashes and were subsequently contacted by K&P between November 2020 and November

2024." Doc. 46 at ¶ 37. This definition suffers from multiple ascertainability defects apparent from

the face of the complaint.

First, determining whether any particular communication constituted prohibited

"solicitation" under Texas Rule of Professional Conduct 7.03 would require individualized

inquiries into the content and context of each call. The rule defines "solicitation" as a

communication "substantially motivated by pecuniary gain" made to someone who "has not sought

the lawyer's advice or services," and which offers "legal services that the lawyer knows or

reasonably should know the person needs in a particular matter." Tex. Disciplinary Rules of Prof'l

Conduct 7.01(b)(2). These elements cannot be established through common proof for all putative

class members.

Second, even if solicitation occurred, Rule 7.03(b) exempts communications directed to:

(1) lawyers; (2) persons with family, close personal, or prior professional relationships with the

attorney; or (3) "experienced users" of legal services for business matters. These exceptions would

require case-by-case determinations that defeat ascertainability. See DeBremaecker v. Short, 433

F.2d 733, 734 (5th Cir. 1970) (class must be "adequately defined and clearly ascertainable").

Third, Plaintiffs' vicarious liability theory—that K&P is liable for the conduct of

unidentified "case runners"—would necessitate individualized inquiries into whether each third-

party solicitor acted as K&P's agent. The complaint alleges no facts showing K&P controlled these

alleged runners or ratified their methods. Doc. 46 at ¶ 32. Indeed, the complaint does not even

provide the identity of the case-runners. Instead, membership in the class would depend on

subjective, case-by-case determinations about the nature of these amorphous and unidentifiable

third-party relationships, precisely the type of administratively infeasible factual inquiries that

defeats ascertainability. Without a way to distinguish between solicitations attributable to K&P

and those initiated independently by third parties, the class cannot be objectively defined or

managed, making certification impossible.

Plaintiffs' reliance on Monson v. McClenny, Moseley & Associates, PLLC, 2024 U.S. Dist.

LEXIS 45664 (S.D. Tex. Feb. 23, 2024), is unavailing. In Monson, Magistrate Judge Ho declined

to strike class allegations at the pleading stage because the plaintiff had not yet addressed critical

distinctions between putative class members who retained the defendant law firm and those who

did not. Id. at *11. The court emphasized that further refinement of the class definition - such as

excluding clients who entered into representation agreements - might resolve ascertainability

concerns under Rule 23. Id. at *26-27. Significantly, the Monson court deferred its ruling on class

viability, noting the parties had not adequately briefed threshold issues including whether the

named plaintiff could satisfy the typicality requirement of Rule 23(a)(3) for both subsets of class

members, or whether differing limitations periods under Texas Government Code § 82.0651(c)

would require subclassing. Id. at *27.

The present case differs materially from Monson. Here, Plaintiffs' proposed class definition

suffers from inherent and incurable defects that are apparent from the face of the Second Amended

Complaint. The Monson court's deferral of class certification issues does not assist Plaintiffs here.

As the Court previously explained, Plaintiffs’ proposed class requires individualized inquiries into:

(1) whether each communication qualified as prohibited solicitation under Texas Disciplinary Rule

7.03—a fact-intensive determination requiring scrutiny of call transcripts (if they exist), affidavits

of potential plaintiffs (if they remember), timing, and context; (2) whether any Rule 7.03(b)

exemptions apply; and (3) whether K&P may be held vicariously liable for third-party solicitors—

a theory demanding case-by-case analysis of agency relationships that the complaint fails to

plausibly allege. These hurdles are not merely procedural; they render the class impossible to

ascertain without a series of mini-trials, defeating the efficiency and fairness goals of Rule 23.

Where Monson left open the possibility of narrowing the class to address deficiencies in an

administratively feasible way, the defects in Plaintiffs’ complaint are categorical, making

administrative management of the class unworkable.

B. The Court Provided Sufficient Analysis

Plaintiffs next contend the Court failed to conduct the "rigorous analysis" mandated by

Dukes when dismissing their class claims. 564 U.S. at 350 (“certification is proper only if the trial

court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.

. .[f]requently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff's

underlying claim.”). This argument misapprehends both the record and applicable law.

While Dukes requires careful scrutiny of class certification issues, it does not mandate any

particular form or length of analysis. See 564 U.S. at 351. Prantil v. Arkema Inc., 986 F.3d 570,

574 (5th Cir. 2021) (upholding a grant of class certification where the district court “heard

arguments on each of [defendant’s] motions” and “did not disregard its gatekeeping role”); see

also Casa Orlando Apartments, Ltd. v. Fed. Nat'l Mortg. Ass'n, 624 F.3d 185, 195-96 (5th Cir.

2010) (affirming denial of class certification where plaintiffs failed "to demonstrate that state law

variations" did not defeat predominance). Here, as the Court acknowledged during the June 16

hearing, the Court's dismissal order reflected consideration of the pleadings and oral arguments,

which revealed fundamental defects in the class allegations. While the Court’s minute entry may

have been brief, its consideration of the issues was not. The Court’s careful consideration of the

pleadings, evaluation of the case law, and several hearings on this matter satisfied the Fifth

Circuit’s standards of analysis.

Moreover, Plaintiffs cite no authority requiring courts to await certification briefing before

dismissing class allegations that are plainly defective on their face. To the contrary, district courts

have inherent authority to strike class allegations early in litigation when the complaint makes

clear that class treatment is inappropriate. See John, 501 F.3d at 445.

C. There Are No New Arguments or Evidence

Plaintiffs’ motion rehashes arguments already raised in opposition to K&P’s Second

Motion to Dismiss. Rule 59(e) does not permit such relitigation. Templet, 367 F.3d at 478-79.

Plaintiffs identify no intervening change in law, newly discovered evidence, or clear error.

IV. CONCLUSION

Plaintiffs have not met their burden under Rule 59(e). The Court’s dismissal of the class claims

was neither premature nor deficient in analysis. Accordingly, Plaintiffs’ Motion for

Reconsideration is DENIED.

IT IS SO ORDERED

Signed at Houston, Texas on July 15, 2025.

Kel D eed

Keith P. Ellison

United States District Judge

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