United States District Court, C.D. Illinois, Urbana Division
DR. MARK W. STURDY d/b/a ROCHESTER VETERINARY CLINIC on behalf of itself and a class, Plaintiff,
A. F. HAUSER INC. and JOHN DOES 1-10 Defendants.
COLIN S. BRUCE, District Judge.
On November 11, 2013, Plaintiff, Dr. Mark W. Sturdy, filed his Complaint (#1) against Defendants, A. F. Hauser Inc. and John Does 1-10. On that same date, Plaintiff filed a Motion to Certify Class (#3). This court has carefully and thoroughly reviewed the arguments and documents provided regarding Plaintiff's motion. After this review, this court concludes that Plaintiff's Motion to Certify Class (#3) should be DENIED.
Between 2012 and 2013, Plaintiff received a number of unsolicited fax messages advertising products and services provided by Defendant A.F. Hauser Inc. Plaintiff alleges that the faxes were part of an advertising campaign, and therefore, it is reasonable to infer that the faxes were sent to more than 20-40 people.
After receiving the unsolicited fax advertisements, Plaintiff filed a Complaint (#1) on behalf of himself and a putative class. The complaint contained five counts: Count I, a claim under the Telephone Consumer Protection Act, 42 U.S.C. § 227; Count II, a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2; and Counts III-V, Illinois common law claims for conversion, private nuisance, and trespass to chattels.
Plaintiff filed his Motion to Certify Class (#3) and Memorandum in Support (#4) on November 11, 2013. In the filings, Plaintiff attempts to join three different classes:
1. All persons (1) who, on or after a date four years prior to the filing of this action (28 U.S.C. § 1658), (2) were sent faxes by or on behalf of defendant A. F. Hauser, Inc., promoting its goods or services for sale (3) which did not contain an opt out notice as described by 47 U.S.C. § 227.
2. All persons with Illinois fax numbers (1) who, on or after a date three years prior to the filing of this action, (2) were sent faxes by or on behalf of defendant A. F. Hauser Inc., promoting its goods or services for sale (3) which did not contain an opt out notice as described by 47 U.S.C. § 227.
3. All persons with Illinois fax numbers (1) who, on or after a date five years prior to the filing of this action, (2) were sent faxes by or on behalf of defendant A. F. Hauser Inc., promoting its goods or services for sale (3) which did not contain an opt out notice as described by 47 U.S.C. § 227.
Plaintiff states, in his Memorandum in Support (#4), that he does not know the size of any of the above classes. However, Plaintiff claims that it would make "no economic sense" for Defendants to "prepare and send such a fax unless it is sent to more than 40 people."
The Supreme Court recently reaffirmed that a class action suit is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (citation omitted). In order to justify a departure from that rule, the party seeking class certification must first meet the four requirements of Federal Rule of Civil Procedure 23(a)(1)-(4): numerosity; commonality; typicality; and adequate representation. See also Dukes, 131 S.Ct. At 2550. If those requirements are met, Rule 23(b)(3) states that class certification is appropriate if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy."
In order to meet the first requirement of Rule 23(a), numerosity, the court must be convinced that the class is "so numerous that joinder of all members is impracticable." Rule 23(a)(1). While there is no definite number of members that makes joinder impracticable, the Seventh Circuit has found that as few as 40 class members may be sufficient to satisfy the numerosity requirement. See Swanson v. American Consumer Industries, 415 F.2d 1326, 1333 (7th Cir. 1969) (40 class members is a sufficiently large group to satisfy Rule 23(a) ...