United States District Court, N.D. Illinois, Eastern Division
RENEE GOGGANS, RONALD FRENCH, and TIFFANY CAHILL, individually and on behalf of all others similarly situated, Plaintiffs,
TRANSWORLD SYSTEMS, INC., Defendant.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
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.
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.
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.
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.
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.
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.
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).
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.
Consent under the TCPA
Prior express consent
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 ...