                                 NOT FOR PUBLICATION                          FILED
                          UNITED STATES COURT OF APPEALS                    JAN 12 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                                  FOR THE NINTH CIRCUIT


    PAUL GANNON, individually and on              No. 13-56813
    behalf of all others similarly situated,
                                                  D.C. No. 2:12-cv-09777-RGK-PJW
               Plaintiff - Appellant,

      v.                                          MEMORANDUM*

    NETWORK TELEPHONE SERVICES,
    INC., a California corporation; DECADE
    COMMUNICATIONS, INC., a California
    corporation; FRONTIER CREDIT, INC., a
    California     corporation;  AMERICAN
    OPERATOR SERVICES, INC., a California
    corporation;      JOSEPH       PRESTON,
    individually; GARY PASSON, individually,

               Defendants - Appellees.

                         Appeal from the United States District Court
                            for the Central District of California
                         R. Gary Klausner, District Judge, Presiding

                          Argued and Submitted December 10, 2015
                                   Pasadena, California

           Before: PREGERSON, CALLAHAN, and HURWITZ, Circuit Judges.




*
      This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
      Paul Gannon challenges the district court’s denial of class certification in his

suit under the Telephone Consumer Protection Act, 47 U.S.C. § 227. We have

jurisdiction of this appeal under 28 U.S.C. § 1291 because the parties stipulated to

dismissal of Gannon’s Second Amended Complaint. We affirm.

      1.    Federal Rule of Civil Procedure 23(b)(3) provides that a class action

may be maintained if “questions of law or fact common to class members

predominate over any questions affecting only individual members.” “To meet this

requirement, the common questions must be a significant aspect of the case” that

“can be resolved for all members of the class in a single adjudication.” Berger v.

Home Depot USA, Inc., 741 F.3d 1061, 1068 (9th Cir. 2014) (internal quotation

marks omitted).

      2.    Gannon’s proposed class includes all recipients of “unauthorized” text

messages from Network Telephone Services (“NTS”). The central issue in the case

is whether the text messages were unauthorized. But, the proposed class includes

at least the following groups: (a) those, like Gannon, who claim to have called an

NTS phone line by mistake and may have discontinued the call before hearing the

“mid-amble” that informed the caller of NTS’s intent to send future text messages;

(b) those who heard the mid-amble and did not follow its instructions as to how to

opt out of receiving text messages; and (c) those who called the NTS phone line in

response to an advertisement that expressly promised future text messages. To


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determine liability, the district court would be required to determine whether under

each of these different factual scenarios—and undoubtedly others—the caller agreed

to receive text messages. Given “the significance of those uncommon questions,”

the district court did not abuse its discretion by finding the requirements of Rule

23(b)(3) unsatisfied. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624

(1997).

      3.    The district court did not abuse its discretion by finding that the

members of the proposed class were not readily ascertainable. See, e.g., Williams

v. Oberon Media, Inc., 468 F. App’x 768, 770 (9th Cir. 2012); In re NJOY, Inc.

Consumer Class Action Litig., --- F. Supp. 3d ---, 2015 WL 4881091, *23 (C.D. Cal.

Aug. 14, 2015).    The district court appropriately determined that it would be

extremely difficult to ascertain the identities of the individuals who had not

consented to receive the messages.

      AFFIRMED.




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