The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on plaintiff Richard Vigus's motion for class action certification under Federal Rule of Civil Procedure 23 (Doc. 70). Defendant Southern Illinois Riverboat/Casino Cruises, Inc. d/b/a Harrah's Metropolis Casino ("the Casino") has responded to the motion (Doc. 73), and Vigus has replied to that response (Doc. 88). In addition, Vigus has asked the Court for leave to amend his compliant (Doc. 74), and the Casino has responded to that motion (Doc. 78).
The Casino, or its agent Global Connect, regularly calls members of its Total Rewards customer loyalty program using a prerecorded voice message to alert the members to special commercial offers or to provide information about the Casino. When an applicant applies to participate in the Total Rewards program, a Casino representative asks the applicant for a telephone number the Casino can use to contact them with special offers or information, and if the applicant provides a number, the Casino adds it to its call list. The Casino has collected over 100,000 telephone numbers in its database, which it does not update unless requested by the Total Rewards program member. The Casino, or Global Connect, targets Total Rewards members based on their history of Casino use and directs certain prerecorded telephone calls to the telephone number provided by those members. The Casino maintains that it calls only telephone numbers that have been provided by applicants to its Total Rewards customer loyalty program. Vigus was not a Total Rewards program member and had never given his number to the Casino.
This matter arose after Vigus received eight prerecorded telephone calls on his residential telephone line conveying an unsolicited advertisement from the Casino. At the time, Vigus had no established business relationship with the Casino and had not given his consent for it to call him. Apparently, the Casino called Vigus because the telephone company through which Vigus received residential telephone service had assigned him a telephone number that had, in the past, belonged to an individual who had given the number to the Casino when he or she had applied to the Total Rewards program. The Casino did not remove the number from its call list when it was reassigned. Vigus believes the Casino violated the Telephone Consumer Protection Act ("TCPA") when it called him.
Among other things, the TCPA prohibits initiating "any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party" unless it is an emergency call or is exempted by regulations promulgated by the Federal Communications Commission ("FCC"). 47 U.S.C. § 227(b)(1)(B); see 47 C.F.R. § 64.1200(a)(2). One of the exemptions created by the FCC is for telephone calls that are made to a person with whom the caller has an established business relationship ("EBR") at the time of the call. See 47 C.F.R. § 64.1200(a)(2)(iv). An EBR is further defined by the regulations by reference to transactions or inquiries between the called party and the caller within certain time frames. 47 C.F.R. § 64.1200(f)(4). Another exemption is for telephone calls that do not contain unsolicited advertisements or solicitations. See 47 C.F.R. § 64.1200(a)(2)(iii).
Vigus contends he never gave his express consent for the Casino to call him and did not have an EBR with the Casino when it called him. Vigus now seeks to represent a class defined as:
All persons in the United States who were called, on or after March 1, 2004, on either (1) a residential telephone line or (2) a cellular telephone service, by or on behalf of Defendant using a prerecorded voice to deliver a message promoting Defendant's Casino to pursue a private cause of action under the TCPA, 27 U.S.C. § 227(b)(3).*fn1 He believes this putative class contains a number of individuals who received telephone calls from the Casino at telephone numbers that had once been given to the Casino by Total Rewards program applicants but which were "stale" because they had since been reassigned to individuals like himself who had no relationship with the Casino. He also suggests no Total Rewards member gave consent to be the subject calls because the general consent to receiving telephone calls did not include consent to receiving prerecorded messages.
Vigus also asks the Court to allow him to amend his complaint, which alleges only an improper call to his residential telephone number, to include a claim for improper calls to cellular telephone numbers in violation of the TCPA, 27 U.S.C. § 227(b)(1)(A)(iii). That provision prohibits "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . ." 27 U.S.C. § 227(b)(1)(A)(iii); see 47 C.F.R. § 64.1200(a)(1)(iii). Because the scope of the complaint is relevant to the issue of class certification, the Court addresses the amendment question first.
II. Motion for Leave to Amend Complaint
Whether Vigus should be allowed to amend his complaint is governed by Federal Rule of Civil Procedure 15(a)(2). Rule 15(a)(2) provides that a plaintiff may amend his pleading only with the opposing party's written consent, which Vigus has not obtained, or leave of court, which the Court should freely give when justice requires. Although the text of the rule has changed in recent years, the rule still "reflects a policy that cases should generally be decided on the merits and not on the basis of technicalities." McCarthy v. Painewebber, Inc., 127 F.R.D. 130, 132 (N.D. Ill. 1989). Generally, the decision whether to grant a party leave to amend the pleadings is a matter left to the discretion of the district court. Orix Credit Alliance v. Taylor Mach. Works,125 F.3d 468, 480 (7th Cir. 1997). A court should allow amendment of a pleading except where there is undue delay, bad faith, dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment. Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (citing Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007)). An amendment is futile if it would not survive a motion to dismiss for failure to state a claim, General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997), or a motion for summary judgment, Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860 (7th Cir. 2001).
In considering Vigus' request for leave to amend his pleading, it is important to remember that prior to certification of a class, the Court views a case simply as a suit by the named plaintiff. See Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609, 616 (7th Cir. 2002) ("[U]ntil certification there is no class action but merely the prospect of one; the only action is the suit by the named plaintiffs."). Thus, the relevant inquiry is not whether any member of the putative class might have a claim under the provisions of the TCPA relating to calls made to cell phone numbers but whether Vigus himself has such a claim. If he does not, he does not have standing to sue under the TCPA's cell phone provisions.
Vigus has not shown that he is able to plead a cell phone TCPA claim, and amendment is therefore futile. The amended pleading would not survive a motion to dismiss because the proposed amendment contains no factual allegations that the Casino made any call to Vigus' cell phone number. Thus, his proposed amended complaint does not allege a violation of § 227(b)(1)(A)(iii), and it would be futile to allow him to file his ...