United States District Court, N.D. Illinois, Eastern Division
AMY MAUER, individually and on behalf of all others similarly situated, Plaintiff,
AMERICAN INTERCONTINENTAL UNIVERSITY, INC., AIU ONLINE, LLC, EVEREST UNIVERSITY, EVEREST UNIVERSITY ONLINE, ZENITH EDUCATION GROUP, INC., ECMC GROUP, INC., AND JOHN DOE CORPORATION, Defendants.
OPINION AND ORDER
L. ELLIS United States District Judge.
Amy Mauer brings a class action complaint against Defendants
American Intercontinental University, Inc. and AIU Online,
LLC (collectively, “AIU”); Everest University,
Everest University Online, Zenith Education Group, Inc., and
ECMC Group, Inc. (collectively, “Everest”); and
John Doe Corporation (“John Doe”). Mauer asserts
that AIU, Everest, and John Doe violated the Telephone
Consumer Protection Act (the “TCPA”), 47 U.S.C.
§ 227 et seq., by calling her cellular
telephone using an automatic telephone dialing system
(“ATDS”) without her express consent. Mauer seeks
to pursue the action not only individually but also on behalf
of the following class:
All persons nationwide who, since October 16, 2013, received
one or more telemarketing calls on their cellular telephones
from Defendants and/or any other person or entity acting on
behalf of Defendants, and placed using an automatic telephone
dialing system and/or an artificial or prerecorded voice,
where the called party did not previously provide express
written consent to be contacted.
Doc. 18 ¶ 60. Mauer seeks certification under Federal
Rule of Civil Procedure 23(b)(2) and (b)(3), requesting both
statutory damages and an injunction prohibiting Defendants
from making calls using an ATDS in the future. In addition to
seeking dismissal of Mauer's amended complaint, AIU filed
a motion to strike the class allegations. AIU's
arguments concerning the impropriety of Mauer's Rule
23(b)(2) and (b)(3) classes are premature and should be
raised in opposition to an affirmative motion for class
certification after discovery. Although, Mauer has proposed
an improper fail-safe class definition, the Court will not
strike the class allegations but instead will consider the
definition a placeholder, allowing Mauer to amend the class
definition before or at the time she moves for class
March 17, 2015, around 6:35 p.m., Mauer received a call on
her cellular phone from John Doe, a telemarketing agency,
through an ATDS using the number (603) 913-2771. When Mauer
answered the phone call, she observed a “noticeable
pause” before a voice came on the other line. Doc. 18
¶ 42. The person claimed to be a representative of the
U.S. Education Network and tried to get Mauer's contact
information to help her “further her education.”
Id. Mauer attempted to get more information from the
representative, but when the representative did not provide
any additional information, Mauer hung up.
after Mauer received the call on March 17, 2015, as part of
her counsel's investigation, a call was placed to the
same number that called Mauer, (603) 913-2771. The
representative that answered the call offered educational
services to the caller. The caller provided the
representative with a telephone number and email address.
Within a matter of minutes, AIU and Everest called the given
telephone number and sent information to the given email
address. AIU and Everest both provide career education
services around the country.
asserts that John Doe placed hundreds of similar calls for
the purpose of collecting contact and other information and
providing that information to AIU and Everest as customer
leads. Mauer never provided express written consent to be
contacted on her cell phone by or on behalf of John Doe, AIU,
or Everest. She seeks to represent individuals who received
similar calls and did not provide express written consent to
Rule 23(c)(1)(A), the Court must determine whether to certify
a class “[a]t an early practicable time.”
Fed.R.Civ.P. 23(c)(1)(A). Rule 23(d)(1)(D) provides the Court
with the ability to require the pleadings to be amended to
remove class action allegations. Fed.R.Civ.P. 23(d)(1)(D).
Motions to strike class allegations at the pleading stage are
appropriate where it is clear from the pleadings that the
class claims are defective. See Kasalo v. Harris &
Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011) (court
“need not delay a ruling on certification if it thinks
that additional discovery would not be useful in resolving
the class determination”). But if the issues concerning
class certification are factual, requiring discovery to
determine whether certification is appropriate, a motion to
strike class allegations at the pleading stage is premature.
Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292,
295 (N.D. Ill. 2014). Unlike with a motion for class
certification, on a motion to strike class allegations, the
defendant, as the movant, bears the burden of persuasion.
Rysewyk v. Sears Holdings Corp., No. 15 CV 4519,
2015 WL 9259886, at *8 (N.D. Ill.Dec. 18, 2015).
certification is appropriate where a plaintiff can meet the
four requirements of Rule 23(a)-numerosity, commonality,
typicality, and adequacy of representation. Fed.R.Civ.P.
23(a). Additionally, a plaintiff must also satisfy one of the
three subsections of Rule 23(b). Fed.R.Civ.P. 23(b);
Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir.
2006). Here, Mauer seeks certification under Rules 23(b)(2)
and (b)(3). Rule 23(b)(2) requires a finding that “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). Rule 23(b)(3) requires a finding that
“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.” Fed.R.Civ.P. 23(b)(3). Finally, although
not an explicit requirement of Rule 23, the class members
must be identifiable. Oshana, 472 F.3d at 513.
argues that the Court should strike Mauer's class
allegations for three reasons: (1) the class Mauer seeks to
represent is an impermissible fail-safe class, (2) Mauer
cannot pursue a Rule 23(b)(3) class because individualized
issues predominate over common questions of law or fact, and
(3) Mauer cannot pursue a Rule 23(b)(2) class because she
seeks predominately monetary damages as final relief. Mauer
responds that AIU's arguments are premature and that the
Court should address AIU's arguments only after she has
fully presented her arguments for certification after
discovery. She also argues that the class definition does not
qualify as ...