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G.M. Sign, Inc. v. Franklin Bank

August 20, 2008


The opinion of the court was delivered by: Charles P. Kocoras, District Judge


This matter comes before the court on the motion of Plaintiff G.M. Sign, Inc. ("GM Sign") to certify a class of plaintiffs in its suit against Defendant Franklin Bank, SSB. For the reasons set forth below, the motion is granted subject to modifications in the class definition set forth herein. Franklin Bank's motion to dismiss the individual claims of GM Sign is denied.


In 2005, Franklin Bank contracted with ActiveCore, a Canadian faxing company, to fax form advertisements to businesses in Illinois, Ohio, West Virginia, Maryland, Georgia, Virginia, North Carolina, South Carolina, Kentucky, Florida, and Colorado. GM Sign is an Illinois business that received one of the fax advertisements sent by ActiveCore on behalf of Franklin Bank on March 29, 2005. The message was a single page and contained both text and images advertising mortgage refinancing and debt consolidation loan programs.

This is the fourth time GM Sign has sought to certify a class of plaintiffs in this case. Familiarity with our rulings on the previous three motions to certify is assumed.

The ruling on the third motion for certification was issued by mail a day before the previously set in-court ruling date; the accompanying order stated that the parties were still to come to court the following day for a status hearing. When GM Sign did not appear, Franklin Bank requested dismissal of the case for want of prosecution, which was granted. Later that day, Franklin Bank informed GM Sign by letter of the disposition and tendered a check for $1500 (the largest damage amount possible under the statute for an individual claim exclusive of additional items such as interest and taxable costs) to GM Sign. The following day, GM Sign moved to vacate the dismissal. A week after that motion was granted, GM Sign filed the instant motion for certification of a class of "[a]ll persons who received a fax between December 2004 and June 2005 that advertised mortgage refinancing or debt consolidation loan programs and that instructed the recipient to "Call the experts for a free analysis" at "1-877-907-SAVE" or "1-877-489-8777" or "1-410-349-4220" and who had not previously consented to receiving such advertisements." Franklin Bank timely filed their brief opposing class certification.

More than three weeks after filing their opposition brief, Franklin Bank moved to dismiss GM Sign's individual claim pursuant to Fed. R. Civ. P. 12(b)(1) on the basis that the claim was mooted by the tendering of the check once the case was dismissed.


I. Motion to Dismiss for Lack of Jurisdiction

Rule 12(b)(1) provides for dismissal of claims over which the federal court lacks subject matter jurisdiction. Jurisdiction is the "power to decide" and must be conferred upon the federal court. See In re Chicago, Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). A court has jurisdiction only over live cases or controversies; a dispute once mooted does not provide a jurisdictional basis. See St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 626 (7th Cir. 2007).

II. Motion for Class Certification

To be certified as a class action, a claim must first satisfy four criteria: numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). The first two focus on the characteristics of the class as a whole: the number of potential class members must be so large that joinder would be impracticable, and legal or factual questions presented in the putative class action must be common to all class members. Fed. R. Civ. P. 23(a)(1), (a)(2). The third and fourth concentrate on the attributes of the parties seeking to represent the class: the claims or defenses of those representatives must be of the same type as those of the class they seek to represent, and the representatives must be able to protect the interests of the class fairly and adequately. Fed. R. Civ. P. 23(a)(3), (a)(4).

If an action shows each of these four attributes, the inquiry shifts to examine whether "the action is maintainable under Rule 23(b)(1), (2), or (3)." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 2245 (1997). Rule 23(b)(3) specifies that a class can be certified if the common factual or legal questions identified for purposes of Rule 23(a)(2) predominate over issues that pertain only to individual class members and if adjudicating the controversy as a class action would be superior to other possible methods. The party who seeks class certification bears the burden of showing that the Rule 23 requirements are ...

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