Sojka v. DirectBuy, Inc.

35 F.Supp.3d 996

Stephanie Sojka, Daniel Hartowicz, and Kenyatta Gilliam, on behalf of themselves and all others similarly situated, and Mark Sojka, Plaintiffs

v.DirectBuy, Inc., an Indiana corporation, and Does 1–10, Defendants.

12 C 9809 consolidated with 13 C 1710

13 C 2786

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

Signed March 31, 2014

Daniel A. Edelman, Jay Edelson, Cathleen M. Combs, Heather A. Kolbus, James O. Latturner, Benjamin Harris Richman, James O. Latturner, Christopher Lillard Dore, Eve–Lynn J. Rapp, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL, Douglas J. Campion, Marron A. Ronald, Law Offices of Douglas J. Campion, San Diego, CA, Stefan Louis Coleman, Law Offices of Stefan Coleman, LLC, Miami, FL, for Plaintiffs.

Thomas Justin Cunningham, Martin Wojslaw Jaszczuk, Tamra Jane Miller, Locke Lord LLP, Chicago, IL, C. Joseph Yast, C Joseph Yast, Merrillville, IN, for Defendants.

Memorandum Opinion and Order

Gary Feinerman, United States District Judge

In this consolidated suit, Stephanie Sojka, Daniel Hartowicz, and Kenyatta Gilliam, on behalf of three putative classes, and Mark Sojka, individually, allege that DirectBuy, Inc. violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., by making telemarketing calls and sending text messages to Plaintiffs and other persons without their prior consent. Docs. 54, 103. Count I of the operative complaint alleges that DirectBuy made unsolicited telephone calls to the Sojkas, Hartowicz, Gilliam, and other members of the putative “RoboCall class” using an artificial or pre-recorded voice, in violation of §§ 227(b)(1)(A)(iii) and (b)(1)(B). Doc. 103 at ¶¶ 52–58. Count II alleges that DirectBuy sent unsolicited text messages to Gilliam and other members of the putative “Text Message class” using an automated dialing system, in violation of § 227(b)(1)(A)(iii). Id. at ¶¶ 59–65. Count III alleges that DirectBuy made more than one call within a twelve-month period to the Sojkas and other members of the putative “Do Not Call class” who had registered their phone numbers on the federal “do-not-call” registry, in violation of § 227(c)(5). Id. at ¶¶ 66–77.

DirectBuy moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts I and II. Doc. 69. The motion states, and the initial supporting memorandum confirms, that DirectBuy preferred that the court rule on its motion to transfer under 28 U.S.C. § 1404(a), Doc. 67, before taking up the Rule 12(b)(6) motion. Doc. 69 at ¶ 3; Doc. 82 at 1. After discovery and briefing, the court denied the § 1404(a) motion. Docs. 115–116, reported at 2014 WL 1089072 (N.D.Ill. Mar. 18, 2014). The court now denies the Rule 12(b)(6) motion as well.^*

Background

In considering the motion to dismiss, the court assumes the truth of the second amended complaint's factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012). The court must also consider “documents attached to the [second amended] complaint, documents that are critical to the [second amended] complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in Plaintiffs' brief opposing dismissal, so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir.2012). The following facts are set forth as favorably to Plaintiffs as those materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir.2012).

DirectBuy “is a membership-based wholesale retailer specializing in home furnishings and other home goods” with over 130 brick and mortar locations in the United States and Canada. Doc. 103 at ¶¶ 1, 14. DirectBuy's business model requires that it regularly recruit new members to join its programs and pay the associated monthly fees. Id. at ¶ 15. To attract potential members, and through either its own telemarketing operations or those of its agents, DirectBuy made thousands of calls and text messages to consumers nationwide in which it offers gift cards, sweepstakes entries, vacation packages, and other gift items in return for the consumer's attendance at informational membership presentations at local DirectBuy locations. Id. at ¶¶ 16–19.

Between August 2012 and November 2012, the Sojkas received at their residential landline at least five unsolicited telemarketing calls from DirectBuy. Id. at ¶ 23. The calls allegedly were placed from an automatic dialer. Ibid. At the time those calls were placed, the Sojkas' landline number was listed on the national “do-not-call” registry. Id. at ¶ 22.

The details of the calls are as follows. On August 13, 2012, the Sojkas received this voicemail on their landline:

Hi, this is Ellie calling from ... in regards to an entry form you filled out to win a $50,000 home makeover, in one of our shopping malls, movie theaters, or online in the last 12 months. I have some very good news for you. Your name was pulled last night. So give me a call back as soon as possible. My number is 888–301–0702. That number again is 888–301–0702, extension 421.

Id. at ¶ 24. The 888 phone number “led to a sales pitch from or on behalf of ... DirectBuy.” Id. at ¶ 25. On or about August 23, 2012, the Sojkas received this voicemail:

Hello, my name is Brooke. I'm calling on behalf of Direct Buy, in regards to an entry form I have here that you guys apparently submitted a while back. Could have been about 12 months ago. It was filled out for a chance to win a $50,000 home makeover for our National Direct Give–Away promotion. Now we did have entries all over, where you can sign yourself up to win and they did choose yours as one of our finalists, so congratulations. This does guarantee you one of the top gifts in the contest, so I strongly advise you to contact me for all the details. My number here is toll free 1–888–960–7821. I can assure you this is not a sales call. So I hope to hear from you soon and have a great day.

Id. at ¶ 26. On October 4, 2012, the Sojkas received this voicemail:

This call is from a verification center in regards to an entry form you filled out to win a $50,000 home makeover in one of our shopping malls, movie theaters, or online within the last 12 months. I have some very good news for you. Your name was pulled last night. Press 1 to speak to a live operator or press 2 to be placed on the DNC [Do Not Call] list.

Id. at ¶ 27. The home makeover referenced in this voicemail is the same as that referenced in the August 23 voicemail. Id. at ¶ 28. On November 9, 2012, the Sojkas received this voicemail:

Hi this is Morgan calling from the verification center in regards to an entry form you filled out to win a $50,000 home makeover in one of our shopping malls, movie theaters, or online in the past twelve months. I have some very good news for you: your name was pulled last night. So give me a call back at 888–648–2805. Again our number is 888–648–2805 extension 485.

Id. at ¶ 29. The 888 phone number “led to a sales pitch from or on behalf of ... DirectBuy.” Id. at ¶ 30. On November 27, 2012, the Sojkas received this voicemail:

Calling from the verification center in regards to an entry form you filled out to win a $50,000 home makeover in one of our shopping malls, movie theaters, or online in the past twelve months. I have some very good news for you. Your name was pulled last night. Press 1 to speak to a live operator, or press 2 to be placed on the DNC list.

Id. at ¶ 31. As with the October 4 voicemail, the home makeover referenced in this voicemail is the same as that referenced in the August 23 voicemail. Id. at ¶ 32.

Although the voicemails repeatedly suggest otherwise, the Sojkas had never filled out any “entry form” or entered into any home makeover sweepstakes sponsored by DirectBuy. Id. at ¶ 33. The calls and voicemails featured a pre-recorded and/or artificial voice, not a live caller. Id. at ¶ 34. At no time did the Sojkas consent to or request calls from DirectBuy. Id. at ¶ 35.

Hartowicz received at least one call to his cell phone from DirectBuy or its agent starting in or around June 2012. Id. at ¶ 36. Each call featured a pre-recorded and/or artificial voice, and each involved an offer for a gift card and other items in exchange for attending a presentation at a DirectBuy showroom. Id. at ¶¶ 37–38. Hartowicz never consented to or requested calls from DirectBuy. Id. at ¶ 39.

Gilliam began receiving calls to his cell phone from DirectBuy or its agent around November 2012. Id. at ¶ 40. Although he advised the caller to stop, Gilliam continued to receive approximately two to three calls per month from DirectBuy through January 2013. Ibid. These calls “usually” were “a pre-recorded message that would then connect him to a live person.” Ibid.

In or around December 2012, Gilliam received multiple text messages to his cell phone from the number 562–320–5789, stating:

this is Alexa Castro From Directbuy Club here in Signal Hill, CA the one who called you before remember?

Id. at ¶ 41. Although Gilliam immediately replied, “No[t] interested,” to the first text, he continued to receive these messages. Ibid. The identical text message was sent to members of the putative class. Id. at ¶ 60. At no point did Gilliam consent to or request text messages or phone calls from DirectBuy. Id. at ¶ 42. These texts allegedly were made “using equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers.” Id. at ¶ 43.

Discussion

The TCPA provides in relevant part:

It shall be unlawful for any person within the United States ...

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—...

(iii) to any telephone number assigned to a ... cellular telephone service ... or any service for which the called party is

...