United States District Court, N.D. Illinois, Eastern Division
NAJEH ABDALLAH, individually and on behalf of classes of similarly situated individuals, Plaintiff,
FEDEX CORPORATE SERVICES, INC., a Delaware corporation, HARTE HANKS, INC., a Delaware corporation, C3/CUSTOMERCONTACTCHANNELS, INC., a Florida corporation, Defendants.
MEMORANDUM OPINION AND ORDER
B. GOTTSCHALL, UNITED STATES DISTRICT JUDGE
something is preventing a package shipped internationally
from being delivered, defendant FedEx Corporate Services,
Inc. (“FedEx”), or, as in this case, a contractor
providing call center services, makes a “trace
call” to the shipper. Resp. to JSMF ¶ 12. As a
result of a "glitch" in a FedEx database, agents of
defendants Harte Hanks, Inc. (“Harte Hanks”) and
C3/Customercontactchannels, Inc. (“C3”), placed
over 200 trace calls to plaintiff Najeh Abdallah's
("Abdallah") cell number between August 2015 and
June 2016. See Resp. to JSMF ¶ 19; Resp. to SAF
¶¶ 2–6. Abdallah filed a two-count class
action complaint against C3, FedEx, and Harte Hanks under the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227.
court has before it defendants' motion for summary
judgment on both counts. Abdallah responded to the motion for
summary judgment in part that he no longer wished to pursue
Count I. He has filed a separate motion, which defendants
oppose, seeking leave to amend his complaint to drop Count I.
the facts surrounding the making of the trace calls at issue
here are undisputed. Abdallah registered his cell number with
the national do-not-call database in 2006. Resp. to SAF
¶ 1. FedEx contracts with C3 and Harte Hanks to place
trace calls to FedEx customers (among other services). Resp.
to JSMF ¶ 12. C3 and Harte Hanks' trace agents use a
software system called “One Source” operated by
FedEx. Resp. to JSMF ¶ 16. FedEx customers provide the
phone numbers in the “One Source” database when
they use the company’s services. Id. at ¶
18. The trace call process begins when a C3 or Harte Hanks
supervisor assigns a trace agent a package's tracking
number. Id. at ¶ 16. The agent enters the
tracking number into “One Source, ” and the
system gives the agent a phone number to call. Id.
trace agents who called Abdallah were trying to reach other
FedEx customers. Resp. to JSMF ¶¶ 12, 15. An error
in the “One Source” system (the exact origin of
which is unclear) caused Abdallah’s cell number to be
“auto-populated into a phone number field for other
FedEx customers whose packages were delayed in
customs.” Resp. to JSMF ¶ 19; see also
Resp. to SAF ¶¶ 2–5 (undisputed that
plaintiff received hundreds of trace calls).
answered the first amended complaint in June 2016. ECF No.
17; see also 1st Am. Ans to 1st Am. Compl., ECF No.
21. The court adopted the parties’ proposed discovery
schedule on August 10, 2016. ECF No. 22. The schedule
required pleadings to be amended by December 1, 2016, and
required discovery to be completed by May 4, 2017.
Id. The court set additional deadlines and referred
the case to the assigned magistrate judge for discovery
before the deadline to amend pleadings, Abdallah sought leave
to amend his complaint, which the court granted seven days
later, ECF No. 31. The Second Amended Complaint
("SAC"), ECF No. 32, added C3 and Harte Hanks as
defendants based on discovery showing that their
representatives placed the calls at issue. See Mem.
Supp. Mot. Leave File 2d Am. Compl. 1, 6, ECF No. 28. Like
the prior complaints, the SAC's two counts allege
distinct TCPA violations. Abdallah asserts in Count I that
defendants called his cell phone without his prior express
consent using an automated telephone dialing system
(“auto dialer” or “ATDS”).
See 47 U.S.C. §227(b)(1)(A)(iii); SAC
¶¶ 38–39. In Count II, Abdallah alleges that
his cell phone number was on the national do not call
registry, and defendants therefore violated 47 U.S.C. §
227(c)(5) by calling him to “solicit[ ] the purchase of
various package disposition services from FedEx.” SAC
¶ 43; see also SAC ¶¶ 42–46.
two months after the SAC was filed, defendants moved to stay
the case. ECF No. 45 (Jan. 26, 2017); see also
Minute Entry, ECF No. 41 (Jan. 12, 2017) (setting briefing
schedule on anticipated motion to stay). They argued that the
case should be paused until the D.C. Circuit Court of Appeals
ruled in ACA International v. FCC., No. 15-1211,
because they anticipated a ruling on the meaning of the word
“capacity” in the TCPA’s definition of an
auto dialer. The TCPA defines the term “automated
telephone dialing system” to mean “equipment
which has the capacity - (A) to store or produce telephone
numbers to be called, using a random or sequential number
generator; and (B) to dial such numbers.” 47 U.S.C.
§ 227(a)(1); see also Blow v. Bijora,
Inc., 855 F.3d 793, 801 (7th Cir. 2017) (discussing
FCC’s history of interpreting this definition). In
ACA International, several companies and trade
associations challenged a 2015 FCC ruling "concluding
that equipment’s 'capacity' to dial random or
sequential numbers is not limited to its 'present
ability.'" Blow, 855 F.3d at 801 (quoting
In re Rules & Regs Implementing the TCPA, 30 FCC
Rcd. 7961, 7972 (2015)).
magistrate judge granted the motion to stay on March 20,
2017. Order, ECF No. 60 (Gilbert, J.). He concluded that
“[t]he D.C. Circuit’s ruling in ACA
International, though not binding, will provide this
Court with valuable input on the merits of Plaintiff’s
ATDS claim and the permissible scope of discovery on that
claim in this case.” Id. at 2; see also
Blow, 855 F.3d at 802–03 (noting that courts
across the nation stayed TCPA cases pending ACA
International). The parties agreed that the do-not-call
claim in Count II would likely be unaffected by any ruling in
ACA International. Id.
International was decided on March 16, 2018. ACA
International v. F.C.C., 885 F.3d 687 (D.C. Cir. 2018).
The D.C. Circuit rejected the FCC’s interpretation of
the word “capacity” in the TCPA’s
definition of an auto dialer. Id. at 695–700.
The ACA International court reasoned that the
FCC’s interpretation of the word “capacity”
would make virtually every smart phone an auto dialer because
“essentially any smartphone, with the addition of
software, can gain the statutorily enumerated features of an
autodialer and thus function as an ATDS.” Id.
at 696. The court found it “untenable to construe the
term 'capacity' in the statutory definition of an
ATDS in a manner that brings within the definition's fold
the most ubiquitous type of phone equipment known, used
countless times each day for routine communications by the
vast majority of people in the country.” Id.
the D.C. Circuit decided ACA International, the
magistrate judge directed the parties to submit a proposed
case management plan and entered a revised case management
order on April 20, 2018, ECF No. 75. The order permitted
approximately six months of fact and expert discovery
relevant to: “(a) the type of equipment used to place
the trace calls at issue, and (b) the nature of the trace
calls made by Defendants.” Id. at 1.
parties completed limited discovery. Minute Entry, ECF No. 88
(Nov. 27, 2018). Defendants then filed their pending motion
for summary judgment, and Abdallah responded by seeking leave
to drop Count I, the auto dialer count, from his complaint.
The “Auto Dialer” Claim
first sought leave to drop the auto dialer claim in Count I
after defendants moved for summary judgment on
He invoked Federal Rule of Civil Procedure 15(a)(2), which
tells courts to “freely give leave [to amend a
pleading] when justice so requires.” The rule takes a
liberal approach to allowing amendments. Runnion ex rel.
Runnion v. Girl Scouts of Greater Chicago & Nw.
Ind., 786 F.3d 510, 520 (7th Cir. 2015).
the December 1, 2017, deadline to amend pleadings has not
been extended, Abdallah must demonstrate good cause to
enlarge that deadline under the more demanding standard of
Rule 16(b)(4). Arrigo v. Link, 836 F.3d 787, 797
(7th Cir. 2016); Bell v. Taylor, 827 F.3d 699, 706
(7th Cir. 2016); Alioto v. Town of Lisbon, 651 F.3d
715, 719 (7th Cir. 2011). While delay alone is rarely a
sufficient reason to deny leave to amend under Rule 15(a)(2),
Arrigo, 836 F.3d at 797 (citing Dubicz v.
Commonwealth Edison Co., 377 F.3d 787, 793 (7th Cir.
2004) (other citation omitted)), “the primary
consideration for district courts [under Rule 16(b)(4)] is
the diligence of the party seeking amendment.”
Alioto, 651 F.3d at 720 (citing Trustmark Ins.
Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542,
553 (7th Cir. 2005)).
outset, the court finds it hard to understand what the
parties perceive to be the difference between amending the
complaint to drop Count I and proceeding to summary judgment.
Defendants insist that Abdallah should not “be
shielded” from the consequences of his decision to
pursue Count I in the face of purportedly contrary discovery.
Resp. Mot. Leave to File 3d Am. Compl. 3, ECF No. 113. But if
Count I is dropped from the complaint, any judgment will
still almost certainly bar Abdallah from bringing a second
suit against defendants asserting a claim similar to Count I.
Under the doctrine of res judicata, a judgment on the merits
bars relitigation by the same parties of “not only
those issues actually decided in the prior suit, but all
other issues which could have been brought” here.
Matrix IV, Inc. v. Am. Nat'l Bank & Tr. Co. of
Chicago, 649 F.3d 539, 547 (7th Cir. 2011) (quoting
Aaron v. Mahl, 550 F.3d 659, 664 (7th Cir. 2008)).
suppose leave to amend is denied. Based on the cases Abdallah
cites in his reply brief, see ECF No. 117 at
3–4, he appears to concede that Count I should be
dismissed either as moot or as abandoned. See Beer v.
Kellogg Sales Co., 2006 WL 1722335, at *1 n.1 (N.D. Iowa
June 22, 2006) (dismissing claim at summary judgment because
plaintiff conceded that it should be dismissed); Mendrala
v. Crown Mortg. Co., 1990 WL 129602, at *4 (N.D. Ill.
Aug. 28, 1990) (denying motion for summary judgment as moot
because the plaintiff voluntarily dismissed a count of the
complaint). Indeed, Abdallah’s failure to develop any
argument against dismissing Count I in his summary judgment
response is reason enough to grant the ...