United States District Court, N.D. Illinois, Eastern Division
ROSEN FAMILY CHIROPRACTIC, SC d/b/a WEST LOOP CHIROPRACTIC, Plaintiff,
CHI-TOWN PIZZA ON DIVISION STREET, INC., d/b/a CHI TOWN PIZZA EXPRESS, Defendant.
MEMORANDUM OPINION AND ORDER
JOHN J. THARP, Jr., District Judge.
Plaintiff Rosen Family Chiropractic, SC ("Rosen") filed this three-count action against Defendant Chi-Town Pizza on Division Street, Inc. ("Division"), doing business as "Chi Town Pizza Express" ("Express"), alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (Count I), and the Illinois Consumer Fraud Act, 815 ILCS 505/2 (Count II), and common law conversion (Count III). Jurisdiction is based on 28 U.S.C. §§ 1331 and 1367.
The claims concern "an unsolicited fax advertisement" that Rosen alleges Division sent to him in violation of the TCPA. Compl., Dkt. 1, ¶ 7. Rosen now moves pursuant to Fed.R.Civ.P. 23 to certify a class of plaintiffs against Division with respect to Rosen's TCPA claim, and to amend its current Complaint to reflect the class definitions asserted in its motion. See Mem., Dkt. 100, at 1 and n.1. For the following reasons, the motion is denied in both respects.
A recurring issue presented in this case is Division's insistence that it "is a separate legal entity from" Express, and that the fax at issue in Rosen's individual TCPA claim refers to Express, not Division. See, e.g., Resp., Dkt. 113, at 1-2. In other words, Division contends that Rosen "sued the wrong corporate entity." Summary Judgment Mem., Dkt. 27, at 3. Shortly after the case was filed, Division moved for summary judgment on this ground, Dkt. 24, but on January 16, 2013, this Court denied that motion due to disputed issues of material fact regarding (1) which of the two entities' goods or services were promoted in the fax at issue in Rosen's individual claim, and (2) on behalf of which entity that fax was sent. See Mem. Op., Dkt. 66.
In so holding, the Court observed that the fax at issue in Rosen's individual claim refers to "office catering" and "points customers interested in catering" to a website for placing catering orders (chitowncateringonline.com) which Rosen alleged "would have been filled by" Division. Id. at 5. Because the TCPA assigns liability to the entity whose services "are advertised or promoted, " 47 C.F.R. 64.1200(f)(8), the Court concluded that Division's liability in this case "turns (in part) on whether it actually provided " such catering services, "a fact question that the parties dispute." Mem. Op., Dkt. 66, at 5. In addition, the Court concluded that "evidence that [Division and Express] shared the website listed on the advertisement and that the advertisement mentions catering services allegedly provided by [Division] raises the possibility that Peles [their owner] intended for the advertisement to promote both of his restaurants." Id. at 7. This possibility, the Court noted, was also consistent with the lack of documentation regarding who paid for the advertisement and whether it was financed after Express was involuntarily dissolved: "If so, then Peles could not have been acting on behalf of [Express], because [Express] no longer existed as a corporate entity." Id.
What did not support the Court's denial of summary judgment-and what the Court expressly rejected as insufficient to support Division's TCPA liability-was the fax's mere reference to a website (chitownpizzaexpressonline.com) that "took potential customers to a shared website from which they may have been able to order from" Division. Id. at 4-5. As the Court explained, Division "cannot face TCPA liability here solely because the chitownpizzaexpressonline.com website promoted [Division] in addition to [Express]"-"that is not enough to conclude that the advertisement itself promoted" Division. Id.
Since this ruling, the parties have conducted discovery regarding other advertisements potentially faxed by or on behalf of Division and/or Express, and Rosen now moves to certify a plaintiff class for his TCPA claim against Division based on what he found. Rosen asserts that in October 2009, Peles hired RFG Marketing ("RFG"), which in November and December of 2009 "successfully sent approximately 3, 000 facsimile advertisements to at least 106 unique fax numbers on behalf of" Division. Mem., Dkt. 100, at 6. According to Rosen, these transmissions are "evidenced by a fax log produced by RFG, " each of the facsimiles "referenced in the fax log used the same template, " and each of the facsimiles produced from this template "promoted Defendant's catering services." Id. at 6-7, 10, 11-12; Reply, Dkt. 114, at 10. Thus seizing upon the Court's summary judgment Opinion (which relied expressly on the promotion of catering services in the fax at issue in Rosen's individual claim to sustain that claim against Division), Rosen now contends in support of his class certification request that the RFG template used to send faxes to the putative class members "promoted Defendant's catering services, " as well. Mem., Dkt. 100, at 10, 11-12; Reply, Dkt. 114, at 10. Hence, argues Rosen, "Plaintiff's claim arises from the same practice or course of conduct' that gives rise to the claims of the other class members - i.e., Defendant's use of fax blaster [sic] to send junk fax advertisements that promote its catering services and fail to provide the opt-out notice required by law." Mem., Dkt. 100, at 10; id. at 11-12 ("Plaintiff and the class members all possess the same interest in advancing the claim that facsimiles promoted Defendant's catering services"); Reply, Dkt. 114, at 10 (same).
With these assertions, Rosen seeks to certify a class of plaintiffs whose fax numbers are listed on the RFG fax log-although that log does not include Rosen's fax number, Reply, Dkt. 114, at 10, and the template used by RFG to send faxes to the numbers on that log differs in critical respects from the fax on which Rosen's individual TCPA claim is based. For example, unlike the fax as issue in Rosen's claim, and contrary to his assertions in support of class certification, the RFG template that Rosen offers to support his class-wide allegations makes no mention of catering services-Division's or otherwise. See Mem. Ex. 1 at Ex. 8, Dkt. 100-1, at 20. Nor does Rosen assert that any of the products or services that are promoted or described in that template were, or would have been, provided by Division. Given these differences between the fax involved in Rosen's individual claim and the template involved in his putative class's claim-differences that go to the heart of the "wrong entity" issue raised by Division in this case-the Court concludes that Rosen's request for class certification must be denied.
"In short, all classes must satisfy the Rule 23(a) criteria of numerosity, common questions of law or fact, typicality of claims or defenses, and adequacy of representation." Spano v. The Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011). In addition, the class must further meet the requirements of at least one provision of Rule 23(b); here, 23(b)(3)'s requirements that "common questions predominate and class treatment is superior." Id. See also Mem., Dkt. 100, at 8, 12-13 (arguing predominance and superiority). Finally, the class must satisfy two implicit prerequisites of Rule 23, namely, that the class be sufficiently "definite" or "ascertainable, " and that the representative plaintiff (here, Rosen) be a member of it. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) ("a class representative must be part of the class and possess the same interest and suffer the same injury' as the class members") (quoting East Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)); Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 493 (7th Cir. 2012) ("a class must be sufficiently definite that its members are ascertainable"); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006) (plaintiff must show "that the class is indeed identifiable as a class" in addition to numerosity, commonality, typicality, and adequacy requirements of Rule 23).
Analysis of these requirements must be "rigorous, " particularly where (as here) certification could expose a defendant "to a very large potential liability." CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 723-24 (7th Cir. 2011) (that the TCPA does not "cap damages" and may therefore expose a defendant to "a very large potential liability" is "relevant" to "the need for a rigorous analysis of whether to certify a class."). "Before deciding whether to allow a case to proceed as a class action, therefore, a judge should make whatever factual and legal inquiries are necessary under Rule 23." Spano, 633 F.3d at 583. "If some of the determinations required by Rule 23 cannot be made without a look at the facts, then the judge must undertake that investigation, " even if those inquiries "overlap with the merits." Wal-Mart, 131 S.Ct. at 2551-52 ("Frequently that rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped." (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160-61 (1982)). Ultimately, to certify a class, the Court must conclude that each Rule 23 requirement is met by a preponderance of the evidence. Teamsters Local 445 Freight Division Pension, Fund v. Bombadier Inc., 546 F.3d 196, 202 (7th Cir. 2008). While each requirement must be analyzed independently, however, they often (as here) overlap, and the analyses they require can therefore "merge." See, e.g., CE Design, 637 F.3d at 724 ("In many cases, " the typicality requirement "merges with the further requirement that the class representative will fairly and adequately protect the interests of the class.'").
With these standards in mind, the Court concludes that Rosen and his putative class fail to meet the requirements for class ...