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Buonomo v. Optimum Outcomes, Inc.

United States District Court, N.D. Illinois, Eastern Division

March 17, 2014

VINCE BUONOMO, on behalf of himself and others similarly situated, Plaintiffs,


AMY J. ST. EVE, District Judge.

Plaintiff Vince Buonomo brings this putative class action against Defendant Optimum Outcomes, Inc. ("Optimum") for violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq. (R. 44, Am. Compl. ¶¶ 1-2.) Before the Court is Optimum's motion to strike Buonomo's class allegations from the Amended Complaint. (R. 45.) For the following reasons, the Court grants Optimum's motion to strike in part, denies it in part, and denies it as moot in part.


Optimum, an Illinois corporation, is a hospital receivables management company that provides collection services for outstanding medical accounts. (Am Compl. ¶ 7.) Buonomo alleges that Optimum called his cell phone without authorization numerous times during the four years before Buonomo filed this suit, including over a dozen times in May and June 2013. ( Id. ¶ 8.) According to Buonomo, the calls "appear to have been attempting to locate and collect from an alleged debtor other than the Plaintiff." ( Id. ¶ 10.) In at least some of the calls, Optimum requested to talk to Brian Woodfield, an individual with whom Buonomo had no relationship. ( Id. ¶ 11.)

Buonomo alleges that Optimum called him using a fully-automated dialing system, rather than human dialers, and in some of the calls, Optimum played an artificial or prerecorded message. ( Id. ¶¶ 12-15.) In November 2012, Buonomo notified Optimum that it was calling the wrong number. ( Id. ¶ 18.) Although Optimum committed to removing Buonomo's cell phone number from its autodialer system, Buonomo continued to receive autodialed calls from Optimum after November 2012. ( Id. ¶ 19.)

Buonomo asserts two counts against Optimum: Count I for violation of the TCPA and Count II for violation of the Fair Debt Collection Practices Act. With respect to Count I, Buonomo seeks to represent the following class of individuals:

All persons whose cell phone number defendant called on or after July 23, 2009, using Livevox (or similar telephone equipment) and/or a prerecorded or artificial voice, where the phone number was not obtained (by defendant, the creditor or their privies) directly from the called party with respect to the subject matter of the alleged debt being collected (for example, where the number was obtained through skip tracing or captured by the defendant's equipment from an inbound call, defendant was calling a wrong number or defendant was requested to stop calling).

( Id. ¶ 40.) Buonomo also seeks certification of a subclass of "persons who requested that [Optimum] cease and desist and/or notified [Optimum] that it was calling the wrong number." ( Id. ) Optimum argues that Buonomo's class allegations fail to satisfy Federal Rule of Civil Procedure 23's requirements as a matter of law and moves to strike them from the Amended Complaint. ( See R. 45, Mot. to Strike.)


Buonomo argues that Rule 12(f), which allows the Court to strike "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter, " see Fed.R.Civ.P. 12(f), governs Optimum's motion to strike. ( See R. 57, Pl. Resp. Br. at 2-3.) Courts in this District, however, evaluate motions to strike class allegations under Rule 23, not Rule 12(f). See, e.g., Valentine v. WideOpen West Fin., LLC, 288 F.R.D. 407, 414 (N.D. Ill. 2012); Hill v. Wells Fargo Bank, N.A., 946 F.Supp.2d 817, 829-33 (N.D. Ill. 2013); Bohn v. Boiron, Inc., No. 11 C 8704, 2013 WL 3975126, at *5 (N.D. Ill. Aug. 1, 2013).

Rule 23(c)(1)(A) directs that "[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action." Fed.R.Civ.P. 23(c)(1)(A). Although "[m]ost often it will not be practicable' for the court to do that at the pleading stage, ... sometimes the complaint will make it clear that class certification is inappropriate." Hill, 946 F.Supp.2d at 829 (citing General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)); see also Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011) ("Consistent with [Rule 23(c)(1)(A)'s] language, a court may deny class certification even before the plaintiff files a motion requesting certification."). In those situations, a court may determine that class certification is inappropriate before the parties conduct class discovery. See Bohn, 2013 WL 3975126, at *5.

If the plaintiff's class allegations are facially and inherently deficient, for example, "a motion to strike class allegations... can be an appropriate device to determine whether [the] case will proceed as a class action." See Bohn, 2013 WL 3975126, at *5; Wolfkiel v. Intersections Ins. Servs. Inc., No. 13 C 7133, 2014 WL 866979, at *4 (N.D. Ill. Mar. 5, 2014); Wright v. Family Dollar, Inc., No. 10 C 4410, 2010 WL 4962838, at *1 (N.D. Ill. Nov. 30, 2010); Muehlbauer v. General Motors Corp., 431 F.Supp.2d 847, 870 (N.D. Ill. 2006). If, on the other hand, the dispute concerning class certification is factual in nature and "discovery is needed to determine whether a class should be certified, " a motion to strike the class allegations at the pleading stage is premature. See Wright, 2010 WL 4962838, at *1; Santiago v. RadioShack Corp., No. 11 C 3508, 2012 WL 934524, at *4 (N.D. Ill. Feb. 10, 2012) (similar); see also Boatwright v. Walgreen Co., No. 10 C 3902, 2011 WL 843898, at *2 (N.D. Ill. Mar. 4, 2011) ("Because a class determination decision generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action, ... a decision denying class status by striking class allegations at the pleading stage is inappropriate.").

To obtain class certification under Rule 23, a plaintiff must satisfy the requirements of Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation-and one subsection of Rule 23(b). See Harper v. Sheriff of Cook County, 581 F.3d 511, 513 (7th Cir. 2009); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). In this case, Buonomo seeks class certification pursuant to Rule 23(b)(3) and Rule 23(b)(2). ( See Am. Compl. ¶¶ 40-50.) Rule 23(b)(2) allows class certification where the "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole, " Fed.R.Civ.P. 23(b)(2), and Rule 23(b)(3) allows class certification where "questions of law and fact common to members of the class predominate over any questions affecting only individual members, and... a class action is superior to other available methods for ...

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