The opinion of the court was delivered by: Judge Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
Presently before us are Plaintiff Dr. Francis Sadowski's ("Plaintiff") Preliminary Motion for Class Certification, Defendant Med1Online, LLC's ("Med1") Motion to Strike Plaintiff's Preliminary Motion for Class Certification, and Med1's Motion to Dismiss. For the reasons set forth below, we deny all of the above motions.
Plaintiff alleges that on or about October 13, 2006, he received two identical unsolicited faxes advertising Med1's products, despite no prior relationship with Med1. (Compl. ¶¶ 7, 12). He also alleges that Med1 was responsible for sending these faxes and derived economic benefit from them. (Id. ¶¶ 9, 10).
On May 2, 2007, Plaintiff filed its first amended complaint in Illinois state court against Med1, a Colorado corporation, and John Does 1-10, the "other natural or artificial persons that were involved in the sending of the facsimile advertisements." (Id. ¶¶ 4, 5). His complaint alleged violations of the Telephone and Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), violations of the Illinois Consumer Fraud Act, 815 ILCS 505/2 ("ICFA"), and a state law conversion claim.
On May 29, 2007, Med1 removed this action to our court.
Since removal, there have been numerous motions filed. Med1 filed a Motion to Dismiss on July 18, 2007. On September 7, 2007, Plaintiff filed a Preliminary Motion for Class Certification. On November 27, 2007, Med1 filed a motion to strike Plaintiff's class certification motion. Also on November 27, 2007, Med1 filed a Rule 68 Offer of Judgment. On December 11, 2007, Plaintiff filed a Motion to Declare Offer of Judgment Ineffective. Finally, on December 13, 2007, we granted the United States's Motion to Intervene.
As indicated above, this Opinion involves three motions: (A) Med1's Motion to Strike Plaintiff's Preliminary Motion for Class Certification; (B) Plaintiff's Preliminary Motion for Class Certification; (C) Med1's Motion to Dismiss. We address each of these motions in turn below.
A. Med1's Motion to Strike Plaintiff's Preliminary Motion for Class Certification
Med1 argues that we should strike Plaintiff's Motion for Class Certification because it is premature, intended only to delay its pending Motion to Dismiss, and brought in bad faith. We disagree.
First, Federal Rule of Civil Procedure 23(c)(1) requires that a district court decide class certification issues "at an early practicable time." In spite of this language, Med1 argues that its Motion to Dismiss should be decided before Plaintiff's class certification motion because it was filed as Med1's "opening move" and therefore fits within the exceptions listed in Illinois State Rifle Ass'n v. State of Illinois, 717 F. Supp. 634, 639 n.12 (N.D. Ill. 1989) (deciding motion to dismiss first because it was defendant's "opening move" and the complaint was "facially suspect in more than one respect that appeared incurable"). However, the Seventh Circuit has rejected this reasoning and has maintained that "[t]he court must decide promptly whether the case should proceed as a representative action, without regard to the virtues of the plaintiffs' legal theory." Koch v. Stanard, 962 F.2d 605, 607 (7th Cir. 1992); see also Hart v. Sheahan, 396 F.3d 887, 894 (7th Cir. 2005). Therefore, we must decide Plaintiff's Motion for Class Certification even before turning to Med1's motion to dismiss.
Med1 also contends that we should strike the Motion for Class Certification because it lacks good faith. Med1 argues that Plaintiff filed its motion prematurely only to avoid the risk that Med1 would file a Rule 68 Offer of Judgment, which might render class certification moot. See White v. Humana Health Plan, No. 06 C 5546, 2007 WL 1297130, at *6-7 (N.D. Ill. May 2, 2007). Plaintiff's filing may have been a strategic move, however, that is not a reason for striking its motion. This is particularly the case given that Plaintiff could have filed the motion for certification up to ten days after the filing of an Offer of Judgment and still avoided mootness. See W. Ry. Devices Corp. v. Lusida Rubber Prods. Inc., No. 06 C 0052, 2006 WL 1697119, at *2-3 (N.D. Ill. June 13, 2006) (demonstrating the uniform consensus in the Northern District of Illinois that "filing a motion to certify a class during the ten day period after a defendant makes an offer of judgment prevents mootness of a plaintiff's claim").
Finally, Med1 argues that Plaintiff's bad faith is evidenced by the fact that he is unable to establish that anyone other than Plaintiff received the faxes at issue. Regardless of the motivation behind Plaintiff's motion for class certification, if Plaintiff's motion is "premature" (i.e., if Plaintiff cannot establish the class requirements of Rule 23), then the class ...