United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. Gettleman, United States District Judge
Rico Tillman has filed a putative class action amended
complaint against defendant The Hertz Corporation, alleging
that defendant violated the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227(b), by placing
unsolicited automated calls to a cellular telephone used by
plaintiff. On August 29, 2018, the court denied
defendant's motion for summary judgment. Tillman v.
Hertz Corp., 2018 WL 4144674 (N.D. Ill. Aug. 29, 2018)
(“Tillman 1”). Defendant has moved to
strike (Doc. 76) plaintiff's class allegations contained
in the amended complaint which, for the reasons discussed
below, the court grants.
facts alleged in this case are stated in detail in
Tillman 1. Briefly, plaintiff's mother, Judy
Sanders, rented a car from defendant and failed to return it
when due. There are many contested facts, including what type
of rental agreement Sanders signed when renting the car,
whether the agreement contained language permitting defendant
to call any telephone number listed by the renter, and
whether the telephone number Sanders listed - including
Sanders' primary number and the “6075” number
used by plaintiff - were for “alternate” or
“emergency” purposes. Other contested facts are
discussed below. Although Sanders was the subscriber of the
6075 number, defendants do not contest that plaintiff was the
number's customary user.
the car rented by Sanders was not returned to defendant on
time, defendant made multiple calls to both numbers listed by
Sanders, which plaintiff claims were “robocalls”
prohibited by the TCPA. Plaintiff also claims that he
directed defendant to stop calling the 6075 number and to
remove it from defendant's database. Defendant denies
that plaintiff made these requests, but accepted the
allegation as true for purposes of the summary judgment
motion. The calls stopped only when Sanders finally returned
the rental car to defendant.
denying defendant's summary judgment motion, and taking
plaintiff's version of the facts as true, the court found
that plaintiff's revocation of the consent allegedly
given by Sanders was reasonable, but noted: “This
opinion demonstrates the highly unlikely certification of any
plaintiff class under Fed.R.Civ.P. 23, due to the obvious
predominance of individual facts concerning consent and
revocation thereof.” Tillman 1, 2018 WL
4144674 at *3 n.5.
in light of that observation by the court, plaintiff sought
and was given leave to file an amended complaint, in which he
revised the definition of the putative class as:
All noncustomers whose cellphone Hertz or some other vender
on its behalf called on or after April 12, 2012, using a
prerecorded voice and/or dialing equipment of the type used
to call plaintiff, where such call was placed after a request
to stop calling that phone number.
altering the definition of the class as stated above,
plaintiff claims that the individual issues identified by the
court as precluding class certification have been rectified.
The court disagrees.
motion to strike class allegations is analyzed under
Fed.R.Civ.P. 23. See Buonomo v. Optimum Outcomes,
Inc., 301 F.R.D. 292, 295 (N.D. Ill. 2014). The standard
for evaluating whether class allegations should be stricken
is the same as for class certification, and the burden is on
plaintiff to demonstrate that class certification is
appropriate. Valentine v. WideOpen West Finance,
LLC, 288 F.R.D. 407, 414 (N.D. Ill. 2012).
class certification is appropriate requires a two-step
analysis. First, plaintiff must satisfy all four requirements
of Rule 23(a): (1) numerosity; (2) commonality; (3)
typicality; and (4) adequacy of representation. Harriston
v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.
1993). Second, plaintiff must satisfy one of the conditions
of Rule 23(b). In this case, plaintiff relies on Rule
23(b)(3), which requires him to show that “the
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).
contested facts peculiar to this case destroy any notion of
adequacy and typicality. Those contested facts include the
type of contract executed by Sanders (and thus the type of
consent she gave), the type of calls defendant made to the
6075 number (whether they used a prerecorded voice or instead
were live calls to determine where the car rented by Sanders
was and to avoid having to report it as stolen), and whether
and how plaintiff “revoked” the consent given by
his mother (which was conceded by defendant only for purposes
of the motion for summary judgment). These contested facts raise
unique defenses peculiar to plaintiff's case, thus making
him an atypical and inadequate class representative.
lack of predominance of common questions of fact is yet
another reason to grant defendant's motion. The putative
class includes all noncustomers that defendant called
“after a request to stop calling [the
noncustomer's] phone number.” Whether a
“request to stop calling” was made is a question
of fact that will need to be litigated with respect to each
member of the class. Common questions of fact thus would not
“predominate over any questions affecting only
individual members, ” Fed.R.Civ.P. 23(b)(3), and the
necessity of conducting mini-trials for each class member
destroys any notion that a class action is superior to other
available methods for efficiently resolving the controversy.
Id As defendant correctly points out, plaintiff has
cited no case in this district certifying a “revocation
class” like that proposed by plaintiff, nor any case
denying a motion to strike such a class.
these reasons, the court grants defendant's motion (Doc.
76) to strike plaintiff's class allegations. This matter
is set for a status report on plaintiff's ...