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Brodsky v. Humanadental Insurance Co.

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

September 29, 2014

LAWRENCE S. BRODSKY, individually and as the representative of a class of similarly-situated persons, Plaintiff,


THOMAS M. DURKIN, District Judge.

Lawrense S. Brodsky filed an amended class action complaint[1] against HumanaDental Insurance Company ("HDIC") that included three counts: violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 ("Count I"); common law conversion ("Count II"); and violation of the Illinois Consumer Fraud and Deceptive Practices Act ("ICFA"), 815 ILCS 505/2 ("Count III"). R. 33. HDIC moved for summary judgment on all three counts. R. 118. On June 12, 2014, the Court granted summary judgment in favor of HDIC as to Counts II and III but denied its motion as to Count I. R. 189; Brodsky v. HumanaDental Ins. Co., No. 10 C 3233, 2014 WL 2780089 (N.D. Ill. June 12, 2014). HDIC has filed two motions in response to the Court's order-a motion for reconsideration, R. 199, and a motion to certify the issues for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the following reasons, the Court denies both motions.


The Court previously provided a detailed background of the facts of this case, see Brodsky, 2014 WL 2780089, at *1-3, and thus presumes familiarity with the background for purposes of this ruling. In short, HDIC sent two identical one-page faxes on May 14, 2008, to Brodsky's fax machine that was assigned to the number (847) 991-0152. There is no dispute that the faxes were sent to (847) 991-0152, but the faxes themselves do not list the number they were sent to or to what individual or entity they were sent. Brodsky's suit is based on those two faxes.

HDIC advanced a number of arguments as to why it was entitled to summary judgment in its favor. As relevant here, HDIC argued that Brodsky lacked standing to pursue the claims and that he could not demonstrate that the faxes were "sent to" him. HDIC also argued that the faxes it sent were not "advertisements, " as defined in 47 U.S.C. § 227(a)(5). Finally, HDIC argued that it had Brodsky's consent to send the faxes, so it could not be held liable under the TCPA. The Court rejected each of HDIC's arguments and concluded that there are issues of fact best resolved by a jury. See id. at *4-11.


I. Motion for Reconsideration

A party is only entitled to relief in a motion to reconsider if he can establish "a manifest error of law or fact or present newly discovered evidence." Vesely v. Armslist LLC, ___ F.3d ___, No. 13-3505, 2014 WL 3907114, at *3 (7th Cir. Aug. 12, 2014) (quoting Boyd v. Tornier, Inc., 656 F.3d 487, 492 (7th Cir. 2011)). "A manifest error' is not demonstrated by the disappointment of the losing party"; instead, it "is the wholesale disregard, misapplication, or failure to recognize controlling precedent.'" Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F.Supp. 1063, 1069 (N.D. Ill. 1997)). A motion to reconsider may also be appropriate if there has been a "controlling or significant change in the law or facts since the submission of the issue to the Court." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). HDIC has resurrected the arguments it made on summary judgment to support its contention that the Court made a manifest error of law in its original ruling- mainly, (1) that the faxes were not advertisements; and (2) that HDIC did not send the fax to Brodsky, so he lacks standing.

A. The Fax Could be an "Advertisement"

HDIC directs the Court to a District of Massachusetts case, Physicians Healthsource, Inc. v. MultiPlan Services Corp., No. 12-11693-GAO, 2013 WL 5299134 (D. Mass. Sept. 18, 2013), that was decided after briefing on the motion for summary judgment concluded but before this Court decided the motion, to argue that the law has significantly changed as to whether the faxes at issue here were advertisements. In Physicians Healthsource v. MultiPlan Services, the court concluded that the fax could not be an advertisement, reasoning that there was not "any enticement that could be construed as a pretext to advertise commercial products or services because the facsimile [was] merely apprising [the doctor] of features of an account to which he already has access." Id. at *2. In ruling on the summary judgment motion, the Court considered all of the relevant cases decided before its ruling on June 12, 2014. Physicians Healthsource v. MultiPlan Services was a case decided prior to the Court's ruling, regardless of whether the parties included it in their briefs. Furthermore, if the case was as influential as HDIC now attempts to show, HDIC could have easily highlighted the case after briefing had ceased by providing it to the Court as supplemental authority. It did not. And in any event, this Court is not bound by an isolated case from the District of Massachusetts, [2] which renders HDIC's argument that the law has changed since its ruling, let alone "significantly changed, " even less cogent. HDIC's argument fails.

B. Brodsky Has Standing

HDIC argues that the Court improperly determined that there was an issue of material fact on the question of standing, contending the Court made a decision "outside the adversarial issues presented to the court by the parties, '" Bank of Waunakee, 906 F.2d at 1191, by making (what it contends was) a decision that "Benefit Marketing Services or Brodsky Ingrassia Life were acting as agents for plaintiff Lawrence S. Brodsky (an individual and sole proprietor)[.]" R. 200 at 9. HDIC alternatively argues that the Court misinterpreted the facts of record in determining that there was a question of fact on the issue. Id. at 9-10.

The Court disagrees with both of HDIC's arguments. HDIC moved for summary judgment-not Brodsky. In doing so, it put at issue whether the faxes were sent to Brodsky. The Court was well within its discretion to consider the parties' arguments before the Court and the logical corollaries resulting from them, even if the language the Court used in reaching its conclusion did not explicitly track the particular language the parties used regarding a given argument. Brodsky provided evidence establishing that he is a sole proprietor, which as Brodsky points out in his response to the motion for reconsideration, R. 207 at 10, "is not a legal entity, but merely a name under which the owner, who is the real party in interest, does business." Jeroski v. Fed. Mine Safety & Health Review Comm'n, 697 F.3d 651, 652 (7th Cir. 2012) (emphasis added). Accordingly, any fax that is sent to the Lawrence S. Brodsky Agency, Inc. (the "LSB Agency"), in essence, invokes the rights of Brodsky. Despite HDIC's arguments to the contrary, there is an inference in this case that in sending the fax to Brodsky Ingrassia Life, HDIC had actually intended to send the fax to what is now the LSB Agency, sole proprietor-and thus, Brodsky himself. This is true regardless of the particular recipient's name listed in HDIC's files or whether the 2006 LSB Contract could supersede the 2003 LSB-Degen Contract.[3] Relevant considerations are those the Court pointed out in its prior order. See Brodsky, 2014 WL 2780089, at * 8. In any event, the Court's ruling on the issue was well within the bounds of the parties' arguments.

That determination aside, the parties' briefs bring about an additional issue that the Court must address. Both sides discuss the case Chapman v. Wagener Equities, ...

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