Vigus v. Southern Illinois Riverboat/Casino Cruises, Inc.

274 F.R.D. 229, 2011 U.S. Dist. LEXIS 24906, 2011 WL 884092
CourtDistrict Court, S.D. Illinois
DecidedMarch 11, 2011
DocketNo. 08-cv-786-JPG
StatusPublished
Cited by14 cases

This text of 274 F.R.D. 229 (Vigus v. Southern Illinois Riverboat/Casino Cruises, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vigus v. Southern Illinois Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 2011 U.S. Dist. LEXIS 24906, 2011 WL 884092 (S.D. Ill. 2011).

Opinion

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on plaintiff Richard Vigus’s motion for class action certification under Federal Rule of Civil Procedure 23 (Doe. 70). Defendant Southern Illinois Riverboat/Casino Cruises, Inc. d/b/a Harrah’s Metropolis Casino (“the Casino”) has responded to the motion (Doc. 73), and Vigus has replied to that response (Doc. 88). In addition, Vigus has asked the Court for leave to amend his compliant (Doc. 74), and the Casino has responded to that motion (Doe. 78).

I. Background

The Casino, or its agent Global Connect, regularly calls members of its Total Rewards customer loyalty program using a prerecord[232]*232ed voice message to alert the members to special commercial offers or to provide information about the Casino. When an applicant applies to participate in the Total Rewards program, a Casino representative asks the applicant for a telephone number the Casino can use to contact them with special offers or information, and if the applicant provides a number, the Casino adds it to its call list. The Casino has collected over 100,000 telephone numbers in its database, which it does not update unless requested by the Total Rewards program member. The Casino, or Global Connect, targets Total Rewards members based on their history of Casino use and directs certain prerecorded telephone calls to the telephone number provided by those members. The Casino maintains that it calls only telephone numbers that have been provided by applicants to its Total Rewards customer loyalty program. Vigus was not a Total Rewards program member and had never given his number to the Casino.

This matter arose after Vigus received eight prerecorded telephone calls on his residential telephone line conveying an unsolicited advertisement from the Casino. At the time, Vigus had no established business relationship with the Casino and had not given his consent for it to call him. Apparently, the Casino called Vigus because the telephone company through which Vigus received residential telephone service had assigned him a telephone number that had, in the past, belonged to an individual who had given the number to the Casino when he or she had applied to the Total Rewards program. The Casino did not remove the number from its call list when it was reassigned. Vigus believes the Casino violated the Telephone Consumer Protection Act (“TCPA”) when it called him.

Among other things, the TCPA prohibits initiating “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party” unless it is an emergency call or is exempted by regulations promulgated by the Federal Communications Commission (“FCC”). 47 U.S.C. § 227(b)(1)(B); see 47 C.F.R. § 64.1200(a)(2). One of the exemptions created by the FCC is for telephone calls that are made to a person with whom the caller has an established business relationship (“EBR”) at the time of the call. See 47 C.F.R. § 64.1200(a)(2)(iv). An EBR is further defined by the regulations by reference to transactions or inquiries between the called party and the caller within certain time frames. 47 C.F.R. § 64.1200(f)(4). Another exemption is for telephone calls that do not contain unsolicited advertisements or solicitations. See 47 C.F.R. § 64.1200(a)(2)(iii).

Vigus contends he never gave his express consent for the Casino to call him and did not have an EBR with the Casino when it called him. Vigus now seeks to represent a class defined as:

All persons in the United States who were called, on or after March 1, 2004, on either (1) a residential telephone line or (2) a cellular telephone service, by or on behalf of Defendant using a prerecorded voice to deliver a message promoting Defendant’s Casino

to pursue a private cause of action under the TCPA, 47 U.S.C. § 227(b)(3).1 He believes this putative class contains a number of individuals who received telephone calls from the [233]*233Casino at telephone numbers that had once been given to the Casino by Total Rewards program applicants but which were “stale” because they had since been reassigned to individuals like himself who had no relationship with the Casino. He also suggests no Total Rewards member gave consent to be the subject calls because the general consent to receiving telephone calls did not include consent to receiving prerecorded messages.

Vigus also asks the Court to allow him to amend his complaint, which alleges only an improper call to his residential telephone number, to include a claim for improper calls to cellular telephone numbers in violation of the TCPA, 47 U.S.C. § 227(b)(l)(A)(iii). That provision prohibits “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 ... to any telephone number assigned to a ... cellular telephone service____” 47 U.S.C. § 227(b)(1)(A)(iii); see 47 C.F.R. § 64.1200(a)(l)(iii). Because the scope of the complaint is relevant to the issue of class certification, the Court addresses the amendment question first.

II. Motion for Leave to Amend Complaint

Whether Vigus should be allowed to amend his complaint is governed by Federal Rule of Civil Procedure 15(a)(2). Rule 15(a)(2) provides that a plaintiff may amend his pleading only with the opposing party’s written consent, which Vigus has not obtained, or leave of court, which the Court should freely give when justice requires. Although the text of the rule has changed in recent years, the rule still “reflects a policy that cases should generally be decided on the merits and not on the basis of technicalities.” McCarthy v. PaineWebber, Inc., 127 F.R.D. 130, 132 (N.D.Ill.1989). Generally, the decision whether to grant a party leave to amend the pleadings is a matter left to the discretion of the district court. Orix Credit Alliance v. Taylor Mach. Works, 125 F.3d 468, 480 (7th Cir.1997).

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Bluebook (online)
274 F.R.D. 229, 2011 U.S. Dist. LEXIS 24906, 2011 WL 884092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vigus-v-southern-illinois-riverboatcasino-cruises-inc-ilsd-2011.