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Practice Management Support Services, Inc. v. Cirque du Soleil Inc.

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

August 2, 2018

Practice Management Support Services, Inc., an Illinois corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,
v.
Cirque du Soleil Inc., Cirque du Soleil (US), Inc., and John Does 1-10, Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE

         In this class action lawsuit, plaintiff Practice Management Support Services, Inc. challenges the alleged practice of defendants Cirque du Soleil, Inc., and Cirque du Soleil (US), Inc., of using a fax broadcasting service to advertise theatrical shows without providing sufficient instructions about how to opt out, in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. On March 12, 2018, the Court granted in part Practice Management's motion for class certification. R. 162. A few months later, on June 11, 2018, the Supreme Court decided China Agritech, Inc. v. Resh, 138 S.Ct. 1800 (2018), which resolved a circuit split regarding the application of the equitable tolling doctrine set forth in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554 (1974), to untimely successive class actions. The China Agritech Court held “that American Pipe does not permit a plaintiff who waits out the statute of limitations to piggyback on an earlier, timely filed class action.” 138 S.Ct. at 1806. In light of China Agritech, defendants have moved to decertify the class, arguing that Practice Management's class claims in this third successive class action are untimely. For the reasons explained below, the Court grants defendants' motion (R. 171) and decertifies the class. Because it is decertifying the class, the Court denies as moot Practice Management's motion for partial reconsideration of the Court's order granting class certification (R. 166).

         Background

         This is the third successive class action case filed against Cirque du Soleil entities by the same counsel (Anderson Wanca) based on the same fax transactions. Because one of Practice Management's arguments against decertification raises the issue of its counsel's diligence, the Court recounts the relevant history of this sprawling litigation here, which began nearly three and a half years before this Court joined the bench.

         On August 27, 2009, Anderson Wanca filed a class action in federal court on behalf of a different named plaintiff (G.M. Sign) against Groupe Cirque du Soleil, Inc., Cirque du Soleil America, Inc., and unnamed Cirque entities. G.M. Sign, Inc. v. Cirque du Soleil, Inc., 09 C 7692, Dkt. 1-1, Dkt. 30 (N.D. Ill.). On September 28, 2010, the court set a February 28, 2011 deadline to add additional parties and a March 18, 2011 class discovery cutoff. Id. Dkt. 35. On March 21, 2011, several weeks after the deadline for adding parties and three days after the close of fact discovery, G.M. Sign moved for an extension of time to complete discovery and to reopen the period to add additional parties. Id. Dkt. 41. The court denied that motion on April 19, 2011. Id. Dkt. 48.

         The day before the federal court's ruling, on April 18, 2011, Anderson Wanca filed a second class action in state court against Cirque du Soleil, Inc. and Cirque du Soleil (US) (the same defendants named in this case), as well as unnamed Cirque entities. R. 47-7. Meanwhile, back in the federal case, G.M. Sign filed a motion in August 2011-five months after the close of discovery-to compel documents it claimed were relevant to establishing the certification requirements. G.M. Sign, 09 C 7692, Dkt. 68. The federal court denied that motion for, among other reasons, inexcusable delay. Id. Dkt. 86 at 4-5. Then, before the federal court ruled on G.M. Sign's perfunctory, four-page motion for class certification (id. Dkt. 83), G.M. Sign requested that the court dismiss the case without prejudice, in part because the court had “denied Plaintiff the ability to add any other of the ‘Cirque' entities as additional defendants.” Id. Dkt. 92 at 2. The court granted the motion to voluntarily dismiss, conditioned on G.M. Sign's payment of defendants' fees and costs. Id. Dkt. 94. On March 28, 2012, G.M. Sign moved to dismiss with prejudice instead of paying fees. Id. Dkt. 99. The court granted that motion and dismissed the case with prejudice on April 4, 2012. Id. at Dkt. 102.

         Nearly two years later, on March 20, 2014, the state court granted summary judgment for defendants on res judicata grounds, finding “no genuine issue of material fact as to whether the defendants in the Lake County action[ ] are privies of the defendants in the federal court action . . . [for] the purposes of res judicata.” R. 47-16 at 20-21. The next day, on March 21, 2014, Anderson Wanca filed this case in federal court, asserting the same TCPA claim based on the same fax against the same defendants, but this time naming Practice Management as class representative. R. 1.

         On November 12, 2015, this Court denied defendants' motion for summary judgment based on the four-year statute of limitations. R. 63. The Court applied the Supreme Court's decision in American Pipe, 414 U.S. at 554, and the Seventh Circuit's opinion construing American Pipe in Sawyer v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d 560 (7th Cir. 2011), to find that Practice Management's claims were tolled until the first federal class action was dismissed on April 4, 2012. R. 63 at 7-14. This meant that the filing of this case fell within the four-year statute of limitations window. Id.

         Practice Management subsequently moved for class certification, and on March 12, 2018, this Court certified the following class:

All persons who are residents of Illinois and all entities located in Illinois who were successfully sent a facsimile in Illinois containing the “Cirque du Soleil” trade name from January 29, 2009, through July 8, 2009, offering tickets for sale to the following performances: “Saltimbanco” at Rockford MetroCentre, Rockford, Illinois, opening February 25, 2009; and “A New Twist on Vaudeville” at Chicago Theatre, Chicago, Illinois, opening November 19, 2009.

R. 162 at 46. On March 20, 2018, this Court granted defendants' motion to stay the case pending the Supreme Court's decision in China Agritech. R. 165. The Supreme Court decided China Agritech on June 11, 2018 (138 S.Ct. 1800), and this Court lifted the stay on June 15, 2018. R. 170. Defendants subsequently moved to decertify based on China Agritech. R. 171.

         Standard

         Under Federal Rule of Civil Procedure 23(c)(1)(C), “[a]n order that grants or denies class certification may be altered or amended before final judgment.” After granting certification, the court “remains under a continuing obligation to review whether proceeding as a class action is appropriate.” Shurland v. Bacci Cafe & Pizzeria on Ogden, Inc., 271 F.R.D. 139, 142 (N.D. Ill. 2010). When a party moves to decertify a class, “the party seeking class certification bears the burden of producing a record demonstrating ...


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