Dr. Mark W. Sturdy v. A. F. Hauser, Inc. et al

Filing 11

OPINION Entered by Judge Colin Stirling Bruce on 5/28/14. IT IS THEREFORE ORDERED THAT: Plaintiff's Motion to Certify Class 3 is Denied. SEE WRITTEN OPINION. (SKD, ilcd)

E-FILED

Wednesday, 28 May, 2014 04:37:05 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
____________________________________________________________________________
DR. MARK W. STURDY d/b/a
)
ROCHESTER VETERINARY CLINIC
)
on behalf of itself and a class,
)
)
Plaintiff,
)
v.
)
Case No. 13-CV-3379
)
A. F. HAUSER INC. and
)
JOHN DOES 1–10
)
)
Defendants.
)
OPINION
On November 11, 2013, Plaintiff, Dr. Mark W. Sturdy, filed his Complaint (#1) against
Defendants, A. F. Hauser Inc. and John Does 1-10. On that same date, Plaintiff filed a Motion to
Certify Class (#3). This court has carefully and thoroughly reviewed the arguments and
documents provided regarding Plaintiff’s motion. After this review, this court concludes that
Plaintiff’s Motion to Certify Class (#3) should be DENIED.
BACKGROUND
Between 2012 and 2013, Plaintiff received a number of unsolicited fax messages
advertising products and services provided by Defendant A.F. Hauser Inc. Plaintiff alleges that
the faxes were part of an advertising campaign, and therefore, it is reasonable to infer that the
faxes were sent to more than 20-40 people.
After receiving the unsolicited fax advertisements, Plaintiff filed a Complaint (#1) on
behalf of himself and a putative class. The complaint contained five counts: Count I, a claim
under the Telephone Consumer Protection Act, 42 U.S.C. § 227; Count II, a claim under the
Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2; and Counts IIIV, Illinois common law claims for conversion, private nuisance, and trespass to chattels.

INSTANT MOTION
Plaintiff filed his Motion to Certify Class (#3) and Memorandum in Support (#4) on
November 11, 2013. In the filings, Plaintiff attempts to join three different classes:
1.

All persons (1) who, on or after a date four years prior to the filing of this action
(28 U.S.C. § 1658), (2) were sent faxes by or on behalf of defendant A. F. Hauser,
Inc., promoting its goods or services for sale (3) which did not contain an opt out
notice as described by 47 U.S.C. § 227.

2.

All persons with Illinois fax numbers (1) who, on or after a date three years prior
to the filing of this action, (2) were sent faxes by or on behalf of defendant A. F.
Hauser Inc., promoting its goods or services for sale (3) which did not contain an
opt out notice as described by 47 U.S.C. § 227.

3.

All persons with Illinois fax numbers (1) who, on or after a date five years prior
to the filing of this action, (2) were sent faxes by or on behalf of defendant A. F.
Hauser Inc., promoting its goods or services for sale (3) which did not contain an
opt out notice as described by 47 U.S.C. § 227.

Plaintiff states, in his Memorandum in Support (#4), that he does not know the size of
any of the above classes. However, Plaintiff claims that it would make “no economic sense” for
Defendants to “prepare and send such a fax unless it is sent to more than 40 people.”
ANALYSIS
The Supreme Court recently reaffirmed that a class action suit is “an exception to the
usual rule that litigation is conducted by and on behalf of the individual named parties only.”
Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (citation omitted). In order to
justify a departure from that rule, the party seeking class certification must first meet the four

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requirements of Federal Rule of Civil Procedure 23(a)(1)-(4): numerosity; commonality;
typicality; and adequate representation. See also Dukes, 131 S.Ct. At 2550. If those
requirements are met, Rule 23(b)(3) states that class certification is appropriate if “the court
finds 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.”
In order to meet the first requirement of Rule 23(a), numerosity, the court must be
convinced that the class is “so numerous that joinder of all members is impracticable.” Rule
23(a)(1). While there is no definite number of members that makes joinder impracticable, the
Seventh Circuit has found that as few as 40 class members may be sufficient to satisfy the
numerosity requirement. See Swanson v. American Consumer Industries, 415 F.2d 1326, 1333
(7th Cir. 1969) (40 class members is a sufficiently large group to satisfy Rule 23(a) where the
individual members of the class are widely scattered and their holdings are too small to warrant
undertaking individual action).
Plaintiff admits that he does not know the exact number of class members in this case,
but estimates the number to be greater than 40. Courts have found that “a class action may
proceed upon estimates as to the size of the proposed class.” See In re Alcoholic Beverages
Litigation, 95 F.R.D. 321, 324 (E.D.N.Y. 1982). However, although “plaintiffs are not required
to specify the exact number of persons in the class,” they “cannot rely on conclusory allegations
that joinder is impractical or on speculation as to the size of the class in order to prove
numerosity.” Marcial v. Coronet Ins. Co., 880 F.2d 954 (7th Cir. 1989). In his brief, Plaintiff
states that this court should infer that the offending faxes were sent to more than 40 people
because it “makes no economic sense to prepare and send such a fax unless it is sent to more

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than 40 people.” Plaintiff offers no reason why he chose a class of at least 40 members or why it
would not make economic sense to send the fax to fewer recipients. This court believes that
Plaintiff’s calculation of classes greater than 40 members based upon the above reasoning is
speculative and not “properly supported.” See Driver v. AppleIllinois, LLC, 265 F.R.D. 293, 300
(N.D.Ill. 2010).
Another problem Plaintiff has with meeting the numerosity requirement is that he has not
established any way to ascertain the class members. In his brief, Plaintiff claims that he will
obtain the exact number of class members through discovery. However, Plaintiff has not
established, and the record does not contain any reference to how the class members will be
ascertained or even if it is possible. While class members need not be ascertained prior to
certification, they must be ascertainable at some point in the case; and plaintiff must establish an
objective way to determine who is a class member. Vandervort v. Balboa Capital Corp., 287
F.R.D. 554, 557 (C.D. Cal 2012).
Importantly, the record and briefs are devoid of any suggestion that Defendants used a
specific list or database when sending out the faxes. Further, Plaintiff has not made any
argument or provided any documentation to support a finding that Defendants are in possession
of evidence which could establish who the faxes were sent to. The absence of available
information regarding a database or list renders this case readily distinguishable from cases that
certified a class despite a plaintiff’s inability to identify fax recipients. For example, in G.M.
Sign, Inc. v. Group C Communications, Inc., 2010 WL 744262 (N.D.Ill. 2010), the record before
the court included the identity of a third party supplier who provided lists which were then used
by the defendant to send the offending faxes.
Without any information sufficient to identify the recipients of the faxes, this case is

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more closely analogous to Saf-T-Gard Intern., Inc. v. Wagener Equities, Inc., 251 F.R.D. 312
(N.D.Ill. 2008). In that case, there appeared to be no list of numbers from which the parties or
the court could reasonably assume that class members could be ascertained. Further, it was
unclear whether the defendants had any records that may have revealed the intended recipients of
the offending fax. Here, too, there appears to be no list of numbers from which the parties or the
court could ascertain who the faxes were sent to and the record does not establish whether any
such list even exists. Therefore, this court cannot find that there is an objective, reasonable way
of identifying potential class members. Because of this, class certification is inappropriate. See
Saf-T-Gard Intern. Inc., 251 F.R.D. at 315; Levitt v. Fax.com., 2007 WL 3169078 (D.Md. 2007).

Having concluded that Plaintiff’s estimate of group membership is speculative and not
properly supported, and that neither Plaintiff nor the record establish that there is an objective,
reasonable way to ascertain potential class members, this court concludes that Plaintiff has not
met the numerosity requirement of Rule 23(a)(1). Accordingly, Plaintiff’s Motion to Certify
Class (#3) is DENIED.
IT IS THEREFORE ORDERED THAT:
Plaintiff’s Motion to Certify Class (#3) is Denied.
ENTERED this 28th day of May, 2014

s/ COLIN S. BRUCE
U.S. DISTRICT JUDGE

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