Shestopal v. DHL Express (USA), Inc.

Filing 16

MEMORANDUM Order, This action is set for an earlier status hearing at 8:45 a.m. February 25, 2015. At that time Shestopal's counsel is ordered to be prepared to explain and to justify his filing of the Complaint, with its proposed expansion to the widespread class defined in Paragraph 1 of Shestopal's Motion for Class Certification that was filed contemporaneously with the purported Class Action Complaint. (For further details see Memorandum Order. Signed by the Honorable Milton I. Shadur on 2/19/2015:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FRED SHESTOPAL, individually and
on behalf of all others similarly situated,
Plaintiff,
v.
DHL EXPRESS (USA), INC.,
a Delaware corporation,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 14 C 10283

MEMORANDUM ORDER
This Court has just received the Answer and Affirmative Defenses ("ADs") filed by DHL
Express (USA), Inc. ("DHL") to the putative Class Action Complaint brought against it by Fred
Shestopal ("Shestopal"). Because that responsive pleading raises a serious question whether
Shestopal's lawyer can have filed this action in the subjective and objective good faith demanded
by Fed. R. Civ. P. ("Rule") 11(b), this memorandum order is issued sua sponte to set a status
hearing at a much earlier date than the previously scheduled March 16, 2015 date.
Until this Court received and reviewed DHL's responsive pleading, it had simply issued
its customary initial scheduling order without giving careful scrutiny to the text message quoted
in Complaint ¶ 5 and relied on by Shestopal and his lawyer as the predicate for an asserted
violation of the Telephone Consumer Protection Act ("Act"). But its current review of that text
message, which is based on a specifically designated shipment by DHL that was scheduled for
delivery to Shestopal, immediately raised a red flag as to how that message could not have been

a direct offshoot of Shestopal's prior consent, so as to negate liability under the Act. And that
suspicion was more than fortified by the detailed account in DHL's first three ADs.
Accordingly this action is set for an earlier status hearing at 8:45 a.m. February 25, 2015.
At that time Shestopal's counsel is ordered to be prepared to explain and to justify his filing of
the Complaint, with its proposed expansion to the widespread class defined in Paragraph 1 of
Shestopal's Motion for Class Certification that was filed contemporaneously with the purported
Class Action Complaint.1

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: February 19, 2015

1

Although this should not be mistaken as a predetermination of the Rule 11(b)
question -- on that score Shestopal's counsel will be given a full opportunity to respond on that
subject at the February 25 status hearing -- counsel is advised that if this Court then determines
that Rule 11(b) has indeed been violated, it will consider the imposition of sanctions under
Rule 11(c)(1) and 11(c)(3).

-2-