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Sojka v. DirectBuy, Inc.

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

March 31, 2014

STEPHANIE SOJKA, DANIEL HARTOWICZ, and KENYATTA GILLIAM, on behalf of themselves and all others similarly situated, and MARK SOJKA, Plaintiffs,
v.
DIRECTBUY, INC., an Indiana corporation, and DOES 1-10, Defendants

Page 997

For Stephanie Sojka, on behalf of herself and a class, Mark Sojka (1:12-cv-09809), Plaintiffs: Daniel A. Edelman, LEAD ATTORNEY, Cathleen M. Combs, Heather A. Kolbus, James O. Latturner, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL; Douglas J Campion, LEAD ATTORNEY, Law Offices of Douglas J Campion, San Diego, CA; Jay Edelson, LEAD ATTORNEY, Edelson PC, Chicago, IL; Marron A. Ronald, Law Offices Of Ronald A. Marron, Aplc, San Diego, CA.

For Daniel Hartowicz (1:12-cv-09809), Plaintiff: Benjamin Harris Richman, LEAD ATTORNEY, Eve -Lynn J. Rapp, Edelson P.C., Chicago, IL; Douglas J Campion, LEAD ATTORNEY, Law Offices of Douglas J Campion, San Diego, CA; James O. Latturner, LEAD ATTORNEY, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL; Jay Edelson, LEAD ATTORNEY, Christopher Lillard Dore, Edelson PC, Chicago, IL; Marron A. Ronald, Law Offices Of Ronald A. Marron, Aplc, San Diego, CA; Stefan Louis Coleman, Law Offices of Stefan Coleman, LLC, Miami, Fl.

For Kenyatta Gilliam, on behalf of themselves and all others similarly situated (1:12-cv-09809), Plaintiff: Douglas J Campion, LEAD ATTORNEY, Law Offices of Douglas J Campion, San Diego, CA; James O. Latturner, LEAD ATTORNEY, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL; Jay Edelson, LEAD ATTORNEY, Edelson PC, Chicago, IL; Benjamin Harris Richman, Edelson P.C., Chicago, IL; Marron A. Ronald, Law Offices Of Ronald A. Marron, Aplc, San Diego, CA.

For DirectBuy, Inc. (1:12-cv-09809), Defendant: Thomas Justin Cunningham, LEAD ATTORNEY, Martin Wojslaw Jaszczuk, Tamra Jane Miller, Locke Lord LLP, Chicago, IL; C Joseph Yast, DirectBuy, Inc., Merrillville, IN.

For Daniel Hartowicz, individually and on behalf of all others similarly situated (1:13-cv-01710), Plaintiff: Jay Edelson, LEAD ATTORNEY, Christopher Lillard Dore, Edelson PC, Chicago, IL; Benjamin Harris Richman, Edelson P.C., Chicago, IL; Marron A. Ronald, Law Offices Of Ronald A. Marron, Aplc, San Diego, CA.

For DirectBuy, Inc., an Indiana corporation (1:13-cv-01710), Defendant: Martin Wojslaw Jaszczuk, Tamra Jane Miller, Thomas Justin Cunningham, LEAD ATTORNEYS, Locke Lord LLP, Chicago, IL; C Joseph Yast, DirectBuy, Inc., Merrillville, IN.

For Kenyatta Gilliam, on behalf of himself and all others similarly situated (1:13-cv-02786), Plaintiff: Beatrice Skye Resendes, LEAD ATTORNEY, Law Offices of Ronald A. Marron APLC, San Diego, CA; Benjamin Harris Richman, Edelson P.C., Chicago, IL; Douglas J Campion, PRO HAC VICE, Law Offices of Douglas J Campion, San Diego, CA; Kas Larene Gallucci, PRO HAC VICE, Law Offices Of Ronald A. Marron, Aplc, San Diego, CA; Ronald Marron, Law Office of Ronald Marron, San Diego, CA.

For DirectBuy, Inc., an Indiana corporation (1:13-cv-02786), Defendant: Robert D Rose, LEAD ATTORNEY, Sheppard Mullin Richter and Hampton, San Diego, CA; Thomas J. Cunningham, LEAD ATTORNEY, Locke Lord Bissell & Liddell LLP, Los Angeles, CA.

Page 998

Memorandum Opinion and Order

Gary Feinerman, United States District Judge.

In this consolidated suit, Stephanie Sojka, Daniel Hartowicz, and Kenyatta Gilliam, on behalf of three putative classes, and Mark Sojka, individually, allege that DirectBuy, Inc. violated the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227 et seq. , by making telemarketing calls and sending text messages to Plaintiffs and other persons without their prior consent. Docs. 54, 103. Count I of the operative complaint alleges that DirectBuy made unsolicited telephone calls to the Sojkas, Hartowicz, Gilliam, and other members of the putative " RoboCall class" using an artificial or pre-recorded voice, in violation of § § 227(b)(1)(A)(iii) and (b)(1)(B). Doc. 103 at ¶ ¶ 52-58. Count II alleges that DirectBuy sent unsolicited text messages to Gilliam and other members of the putative " Text Message class" using an automated dialing system, in violation of § 227(b)(1)(A)(iii). Id. at ¶ ¶ 59-65. Count III alleges that DirectBuy made more than one call within a twelve-month period to the Sojkas and other members of the putative " Do Not Call class" who had registered their phone numbers on the federal " do-not-call" registry, in violation of § 227(c)(5). Id. at ¶ ¶ 66-77.

DirectBuy moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts I and II. Doc. 69. The motion states, and the initial supporting memorandum confirms, that DirectBuy preferred that the court rule on its motion to transfer under 28 U.S.C. § 1404(a), Doc. 67, before taking up the Rule 12(b)(6) motion. Doc. 69 at ¶ 3; Doc. 82 at 1. After discovery and briefing, the court denied the § 1404(a) motion. Docs. 115-116, reported at 2014 WL 1089072 (N.D. Ill. Mar. 18, 2014). The court now denies the Rule 12(b)(6) motion as well.[*]

Background

In considering the motion to dismiss, the court assumes the truth of the second amended complaint's factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court must also consider " documents attached to the [second amended] complaint, documents that are critical to the [second amended] complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Plaintiffs' brief opposing dismissal, so long as those facts " are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The following facts are set forth as favorably to Plaintiffs as those materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).

DirectBuy " is a membership-based wholesale retailer specializing in home furnishings and other home goods" with over 130 brick and mortar locations in the United States and Canada. Doc. 103 at ¶ ¶ 1, 14. DirectBuy's business model requires that it regularly recruit new members to join its programs and pay the associated monthly fees. Id. at ¶ 15. To attract potential members, and through either its own telemarketing operations or those of its agents, DirectBuy made thousands of

Page 999

calls and text messages to consumers nationwide in which it offers gift cards, sweepstakes entries, vacation packages, and other gift items in return for the consumer's attendance at informational membership presentations at local DirectBuy locations. Id. at ¶ ¶ 16-19.

Between August 2012 and November 2012, the Sojkas received at their residential landline at least five unsolicited telemarketing calls from DirectBuy. Id. at ¶ 23. The calls allegedly were placed from an automatic dialer. Ibid. At the time those calls were placed, the Sojkas' landline number was listed on the national " do-not-call" registry. Id. at ¶ 22.

The details of the calls are as follows. On August 13, 2012, the Sojkas received this voicemail on their landline:

Hi, this is Ellie calling from ... in regards to an entry form you filled out to win a $50,000 home makeover, in one of our shopping malls, movie theaters, or online in the last 12 months. I have some very good news for you. Your name was pulled last night. So give me a call back as soon as possible. ...

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