Brodsky v. HumanaDental Insurance Company

Filing 129

MEMORANDUM Opinion and Order. Plaintiff's motion for reconsideration of the Court's order denying his motion to amend 126 is denied. Signed by the Honorable James F. Holderman on 12/21/12. Notice mailed by judge's staff(ntf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAWRENCE S. BRODSKY, individually
and as the representative of a class of
similarly-situated persons,
Plaintiff,
v.
HUMANADENTAL INSURANCE COMPANY
d/b/a HUMANA SPECIALTY BENEFITS,
Defendant.

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No. 10 C 3233

MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, Chief Judge:
This class action lawsuit alleges that defendant HumanDental Insurance Company violated
the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, Illinois common law, and the
Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2, by sending
unsolicited facsimile advertisements to plaintiff Lawrence Brodsky and others. Currently pending
before the court is Brodsky’s motion for reconsideration of the court’s November 30, 2012, order
denying Brodsky leave to amend his complaint. (Dkt. No. 115.) Because the date for amending
pleadings in the court’s scheduling order (Dkt. No. 41) had passed, Brodsky was required to show
“good cause” for the late amendment before the court would consider the requirements of Fed. R.
Civ. P. 15(a)(2). Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011); see also Fed. R. Civ.
P. 16(b)(4). The primary consideration for the court in deciding whether good cause was shown was
“the diligence of the party seeking amendment.” Alioto, 651 F.3d at 720.
The court held that Brodsky had failed to show good cause because he had multiple
opportunities to discover the identity of the additional defendants he sought to add in his amended

complaint, and yet failed to exercise diligence to do so. In particular, the court noted that Brodsky
was on notice from before the filing of the lawsuit of the TCPA’s definition of a “sender” who is
subject to liability—“the person or entity on whose behalf a facsimile unsolicited advertisement is
sent or whose goods or services are advertised or promoted in the unsolicited advertisement,” 47
C.F.R. § 64.1200(f)(8) (2008)—but failed to inquire of HumanaDental about whose goods or
services were advertised in the facsimiles.
Brodsky’s motion to reconsider seeks to excuse that failure by noting that Humana, Inc., the
parent company of HumanDental, took the position under oath that it was the sender of the
advertisements at issue, and that HumanaDental has maintained that position in the current lawsuit.
(Dkt. No. 127, at 8-9.) Brodsky, however, cites no instance in which Humana, Inc. or HumanaDental
stated that Humana, Inc. was the exclusive sender of the facsimiles or that the products advertised
were exclusively Humana, Inc. products. Accordingly, the statements did not preclude the possibility
that other entities offered some of the products in the facsimile advertisements. Moreover, Brodsky
goes on to argue that “[n]otwithstanding Humana, Inc.’s assertions [that it was the sender], and in
the exercise of due diligence, Plaintiff continued to investigate and determined HDIC was the proper
defendant, i.e., the entity whose goods and services were referenced in the facsimile advertisement
(and thus the sender under the TCPA).” (Dkt. No. 127, at 9.) In other words, Brodsky knew that
Humana, Inc.’s assertions were false, and yet he persists in arguing that he relied on those assertions
and thus cannot be faulted for the failure to investigate further the identity of the entities whose
goods and services were advertised in the facsimiles. If Brodsky knew that Humana, Inc. was not
actually the proper defendant, however, he should have continued to exercise diligence to discover
the proper defendants by asking which entities offered the goods and services advertised in the

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facsimiles. He did not do so, so the court rejects Brodsky’s implausible argument.
Next, Brodsky returns to his argument that the general question in Interrogatory 23 of his
discovery requests sought information about other entities who offered products in the facsimile
advertisements. (Dkt. No. 60, Ex. 4, at 17.) That interrogatory states:
If you contend that any other entity or individual should be responsible for the
actions complained of in this lawsuit, fully identify each such entity or individual and
state all facts supporting such contention or regarding the entity’s or individual’s role
in the actions complained of in this lawsuit.
(Id.) HumanaDental objected to the interrogatory and failed to respond. Although the court noted
that the objections were frivolous, it held that Brodsky had not exercised diligence in filing a motion
to compel a response:
HumanaDental’s fault does not automatically mean that Brodsky has exercised due
diligence, however. Following HumanaDental’s objection to Interrogatory 23,
Brodsky failed to file a motion to compel or to engage in any other attempt to force
HumanaDental to answer. Moreover, Brodsky provides no explanation for his
failure. That failure thus undermines any argument that Brodsky exercised due
diligence in attempting to discover the identity of the Additional Defendants.
(Dkt. No. 116, at 5.) Brodsky’s motion to reconsider now attempts to provide the missing
explanation for his failure to file a motion to compel or to serve additional, more specific
interrogatories on HumanaDental seeking the identity of other entities whose products might be
advertised in the facsimiles. The explanation is, again, that “Plaintiff did not seek to compel on
Interrogatory No. 23 because the position asserted by Humana, Inc. and HDIC, consistent with its
position throughout the course of the litigation, was that Humana, Inc. was the sender of the fax.”
(Dkt. No. 127, at 8.) As the court has just explained, however, it was utterly unreasonable for
Brodsky to rely on Humana, Inc.’s representations that it was the sender of the fax, both because
those statements do not preclude the existence of other senders, and because Brodsky admits that

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he determined Humana, Inc.’s statements to be false.
Brodsky also points out that the Seventh Circuit has described the “good cause” standard as
an inquiry into whether the movant seeking an amendment “was, or should have been, aware of the
facts” leading to the amendment. Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d
542, 553 (7th Cir. 2005). Quite so. Under that standard, though, it is irrelevant that Brodsky did not
actually become aware of the identity of the defendants he seeks to add until only a few weeks
before his motion to amend. Brodsky “should have been” aware of their identities much earlier, for
he had ample opportunities to discover their identity with the exercise of diligence.
None of the other arguments Brodsky raises have any merit. The court will deny his motion
for reconsideration.
CONCLUSION
For the reasons explained above, Brodsky’s motion for reconsideration of the court’s order
denying his motion to amend (Dkt. No. 126) is denied.
ENTER:

_______________________________
JAMES F. HOLDERMAN
Chief Judge, United States District Court
Date: December 21, 2012

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