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Goggans v. Transworld Systems, Inc.

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

April 12, 2017

RENEE GOGGANS, RONALD FRENCH, and TIFFANY CAHILL, individually and on behalf of all others similarly situated, Plaintiffs,
v.
TRANSWORLD SYSTEMS, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY United States District Judge.

         Renee Goggans, Ronald French, and Tiffany Cahill filed a class-action complaint against Transworld Systems, Inc., alleging that Transworld made debt-collection phone calls using an autodialer in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, and the Rosenthal Act, Cal. Civ. Code § 1788. Transworld has moved for summary judgment on the TCPA claims brought by Goggans and asks the Court to strike the class allegations from the complaint. For the reasons stated below, the Court denies Transworld's motion for partial summary judgment as well as the request to strike the class allegations.

         Background[1]

         In April 2012, Goggans went to Pacific Beach Urgent Care in San Diego, California for medical treatment. At that time, she completed a patient registration form. See Def.'s Am. Statement of Undisputed Material Facts (ASUMF), Ex. B (Avila Decl.) at TSI 002. She provided a cellular phone number ending in 6507 in two locations on the form: once in the patient information section and once in the responsible party section. Pls.' Resp. to Def.'s ASUMF ¶ 6. She did not provide any insurance information, and Pacific Beach marked her in its records as a private payer. See Avila Decl. at TSI 001- 002. Goggans alleges that she paid in full for the services at the time of the appointment. See Pls.' Opp'n to Def.'s Am. Mot. for Partial Summ. J. (Pls.' Opp'n) at 3- 4.

         Despite this, Pacific Beach transferred Goggans' account to Transworld, a debt-collection company, apparently indicating that Goggans still owed money for these services. Def.'s ASUMF, Ex. C (Klein Decl.) ¶¶ 8-9. Pacific Beach provided Transworld with the cell phone number ending in 6507 as Goggans' contact number. Transworld began contacting Goggans in March 2013 to attempt to collect payment. The parties dispute the number of calls that occurred between March 2013 and May 2015, and they also dispute whether Goggans actually spoke with anyone during these calls. Jonathan Klein, Transworld's senior compliance manager, reviewed the company's records on Goggans' account and states that up until May 28, 2015, every call that Transworld placed to Goggans' cell phone was disconnected after Goggans answered but before the call was transferred to a Transworld representative. Id. ¶ 15. Klein-who did not participate in any of the calls-also says that none of these calls resulted in conversation with Goggans or a request by Goggans that Transworld stop contacting her. Id. ¶ 16.

         Goggans provides a different version of events during this time period. She says that Transworld called her over 300 times during this 26-month period. Pls.' Resp. to Def.'s ASUMF ¶ 17. She also testified during her deposition that she repeatedly told them to stop calling. See Pls.' Resp. to Def.'s ASUMF, Ex. B (Goggans Dep.) at 23:4- 10, 83:14-85:24, 127:20-23, 128:24-130:8. Goggans testified that she often did this as soon as she picked up the phone, before the caller had the chance to launch into his pitch. Id. at 133:10-134:1.

         The parties agree, however, that Goggans spoke with a Transworld representative on May 28, 2015. Pls.' Resp. to Def.'s ASUMF ¶ 18. A Transworld employee called Goggans and told her that she was calling about the Pacific Beach account with a balance of $90.24. Klein Decl., Ex. 1. Goggans stated that she was unaware that she owed Pacific Beach any money. Id. She indicated that she would contact Pacific Beach and asked Transworld for an account number she could reference. Id. During this conversation, Goggans never asked Transworld to stop calling her regarding the Pacific Beach account. The parties agree that Transworld did not call Goggans after the May 2015 conversation. Pls.' Resp. to Def.'s ASUMF ¶ 20.

         Goggans filed a class-action complaint in February 2016, naming as plaintiffs herself and a minor who allegedly received similar calls from Transworld. In October 2016, Goggans filed an amended complaint removing the minor as plaintiff and adding another class claim. In January 2017, Goggans filed a second amended complaint adding French and Cahill as named plaintiffs. In count 1, plaintiffs allege that Transworld negligently violated the TCPA by calling them using an autodialer or artificial voice without their consent. Second Am. Compl. ¶¶ 99-105. Plaintiffs allege in count 2 that Transworld's violations of the TCPA were knowing or willful. In count 3, Goggans alone alleges that this same conduct violates the FDCPA and that Transworld further violated the FDCPA by calling her from a phone number designed to mimic her geographic location (i.e. with an area code from her geographic area). See id. ¶¶ 90, 106-08. Goggans alleges in count 4 that this same conduct violates California's Rosenthal Act. Id. ¶¶ 109-12. The three plaintiffs also seek to certify two classes, one for the claims brought under the TCPA and one for the claim brought under the FDCPA. Id. ¶¶ 88-98. The proposed TCPA class includes all persons whose cell phone number was called by Transworld using an autodialer or an artificial voice in the four years prior to the filing of this action, excluding those who Transworld called for emergency purposes. Id. ¶ 89. The proposed FDCPA class includes all persons who live in California and received a call from Transworld, in the year prior to the filing of this action, in which Transworld used an area code assigned to California. Id. ¶ 90.

         Discussion

         Transworld has moved for summary judgment on Goggans's claims in counts 1 and 2 and also asks the Court to strike the class claims asserted in the second amended complaint. Transworld argues that Goggans expressly consented to receiving phone calls on her cell phone and never revoked that consent. Transworld also argues that the class claims should be stricken because the issue of consent is an individual issue that defeats the predominance requirement for class certification under Federal Rule of Civil Procedure 23(b)(3).

         When reviewing a motion for summary judgment, the Court examines the record in the light most favorable to the non-moving party and makes all reasonable inferences in her favor. Lox v. CDA, Ltd., 689 F.3d 818, 821 (7th Cir. 2012). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. McKinney v. Cadleway Props., Inc., 548 F.3d 496, 500 (7th Cir. 2008).

         I. Consent under the TCPA

         A. Prior express consent

         The TCPA makes it illegal to use an automatic telephone dialing system or an artificial or prerecorded voice to call a cell phone number, unless the call is for emergency purposes or the caller has the prior express consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii). Prior express consent is an affirmative defense on which the defendant bears the burden of proof. See Zeidel v. YM LLC USA, No. 13 C 6989, 2015 WL 1910456, *2 (N.D. Ill. Apr. 27, 2015); Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F.Supp.2d 898, 905 (N.D. Ill. 2012); Charvat v. Allstate Corp., 29 F.Supp.3d 1147, 1149 (N.D. Ill. 2014); see also Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044 ...


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