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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

GRANT BIRCHMEIER and STEPHEN 

PARKES, on behalf of themselves and a 

class of others similarly situated, 

Plaintiffs,

v.

CARIBBEAN CRUISE LINE, INC., 

ECONOMIC STRATEGY GROUP, 

ECONOMIC STRATEGY GROUP, INC.,

ECONOMIC STRATEGY, LLC, and 

unknown individual defendants, 

Defendants.

Case No. 1:12-cv-04069

Honorable Matthew F. Kennelly

DAVID WRIGHT, individually and on 

behalf of a class of similarly situated 

individuals,

Plaintiff,

v.

THE BERKLEY GROUP, INC., a Florida 

corporation, and VACATION 

OWNERSHIP MARKETING TOURS, 

INC., a Florida corporation,

Defendants.

Case No. 1:13-cv-0093

Honorable Elaine E. Bucklo

MOTION TO RELATE AND CONSOLIDATE CASES

Plaintiff David Wright (“Wright”), plaintiff in the action Wright v. The Berkley Group, 

Inc. et al., No. 13-cv-0093 (N.D. Ill.) (“the Wright matter”), presently presiding in this District 

before the Honorable Elaine E. Bucklo, pursuant to Local Rule 40.4 and Federal Rule of Civil 

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Procedure 42(a), hereby respectfully move the Court for an Order: (i) relating the Wright matter 

to this case and reassigning it to this Court, and (ii) consolidating the Wright matter with this 

case.

Birchmeier and Wright (the “Related Actions”)—as well as the additionally related action 

of Vigus v. Caribbean Cruise Line, Inc., et al., 12-cv-01834 (E.D. Mo.),1—each seek relief on 

behalf of a nationwide class of individuals alleged to have received calls on their cellular 

telephones from defendants in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 

227, et seq. (“TCPA”). As discussed further below, each of the requisites to relation and 

consolidation are easily satisfied here. Indeed, the parties, causes of action, and legal and factual 

issues raised in each case are nearly identical. Given the significant overlap between the cases 

and the litigation that has already occurred in this action, this Court is uniquely familiar with the 

issues to be resolved in both matters. Simply put, relation and consolidation present the most 

efficient method for resolution of both matters and will serve to avoid the unnecessary and 

duplicative expenditure of resources by the parties and the judiciary. 

Further counsel for the respective parties in the Related Actions agree that consolidation 

of this matter would promote uniformity, avoid the duplication of effort, and further the interest 

of judicial economy. Accordingly, Wright respectfully requests that the Court enter an Order 

relating the Wright matter to this case and reassigning it to this Court, and consolidating both 

cases for all further proceedings.

 1 The parties in the Vigus matter jointly moved to transfer their case to the Northern 

District of Illinois on January 30, 2013, which was granted on February 1, 2013. Vigus has been

assigned to the Honorable Sharon Johnson Coleman, and is now docketed as Vigus v. Caribbean 

Cruise Line, Inc., et al., 13-cv-00908 (N.D. Ill.) 

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Pertinent Background of Both Matters

1. On May 24, 2012, Grant Birchmeier and Steven Parkes filed a class action 

complaint in the Northern District of Illinois against Defendants Caribbean Cruise Line, Inc. 

(“CCL”), Economic Strategy Group, Economic Strategy Group, Inc., and Economic Strategy 

LLC (the “ESG Defendants”)—which they later amended on July 7, 2012—alleging that CCL 

and ESG engaged in a telemarketing campaign in violation of the TCPA. (See Birchmeier, 

Amended Class Action Complaint (Dkt. 24), a true and accurate copy of which is attached hereto 

as Exhibit A.)2 Specifically, the Amended Complaint in Birchmeier alleges that ESG and CCL—

through their operating unit POA—made automated or pre-recorded calls to consumers without 

their consent, under the guise of an offer for a “free cruise” in exchange for answering a series of 

political survey questions. 

2. On May 25, 2012, Plaintiff David Wright filed a similar class action in the 

Southern District of Florida, complaining about the same conduct, but naming The Berkley 

Group, Inc. (“Berkley”), as a party-defendant. (See Wright, Complaint (Dkt. 1).) Thereafter, 

Wright amended his complaint to include Berkley’s outside marketing vendor for its Florida 

resorts, Vacation Ownership Marketing Tours, Inc. (“VOMT”), which is alleged to have worked 

in concert with Berkley, to place, or cause to be placed, the same calls described in the 

Birchmeier Action. (See Wright, Amended Class Action Complaint (Dkt. 32), a true and accurate 

copy of which is attached hereto as Exhibit B.)3

 2 The original complaint in Birchmeier also named POA as a party-Defendant, alleging 

upon information and belief that POA “is an operating unit of Caribbean Cruise Line, Inc.” 

(Birchmeier, Dkt. 1.)

3 While Wright also asserts a claim for breach of contract resulting from Defendants’ 

alleged failure to provide the promised free cruise upon his completion of the telephone survey 

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3. After Wright discovered that Birchmeier alleged the same core conduct, presented 

the same legal issues, and sought to represent near-identical putative classes, on January 29, 

2013, the Parties in Wright jointly moved to transfer venue pursuant to 28 U.S. 1404(a).

4. On January 31, 2013, the Honorable Robin S. Rosenbaum of the Southern District 

of Florida granted the Parties’ Joint Motion to Transfer, finding that “Wright and Birchmeier 

involve the same alleged scheme, the same entities who allegedly participated in the scheme, and 

essentially the same questions of law and fact” (See Wright Transfer Order, at 4, a true and 

accurate copy of which is attached hereto as Exhibit C), and ultimately that “the interest of 

justice favors transfer of this action to the Northern District of Illinois” so it can ultimately be 

consolidated with the Birchmeier Action. (Id. at 10.)

5. The Wright action has since been randomly assigned to Judge Elaine E. Bucklo in

this District, and accordingly, Wright now moves this Court to find that the Wright and 

Birchmeier Actions are related, pursuant to Local Rule 40.4, and that Wright is fit to be 

reassigned to this Court and consolidated with this action.

ANALYSIS

I. Wright and Birchmeier are Related Under Local Rule 40.4(a).

6. Under Local Rule 40.4, the Court has discretion to relate one or more cases.

Taylor–Holmes v. Office of the Cook County Pub. Guardian, 503 F.3d 607, 609 (7th Cir. 2007). 

However, before a relating order may be entered, at least one of the following conditions of Rule 

40.4(a) must be satisfied: (i) the cases to be related involve the same property; (ii) the cases 

involve some of the same issues of fact or law; (iii) the cases grow out of the same transaction or 

occurrence; or (iv) in class action suits, one or more of the classes involved in the cases is or are 

 

(Wright Compl. at ¶¶ 37-41), Plaintiff Wright does not intend to pursue this claim through a 

consolidated complaint if the Court grants the this motion. 

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the same. N.D. Ill. L.R. 40.4(a). The cases need not be absolutely identical to be related for 

purposes of satisfying Local Rule 40.4(a). See Fairbanks Capital Corp. v. Jenkins, No. 12 C 

3930, 2002 WL 31655277, at *2 (N.D. Ill. Nov. 25, 2002) (granting reassignment based on 

relatedness). 

7. Here, a finding that Wright and Birchmeier are related is appropriate under Local 

Rule 40.4(a) on three independent bases. Foremost, the cases are relatable under 40.4(a)(2) 

because they involve the same issues of both fact and law. Indeed, as explained by Judge 

Rosenbaum, factually: 

Both complaints allege the same scheme. More specifically, both 

complaints aver that the defendants in the respective cases engaged in 

robo-calling and that call recipients were asked by a caller representing 

himself to be a part of Political Opinions of America (“POA”) to take a 

political survey, in exchange for which the call recipient would receive a 

free cruise from Caribbean Cruise Lines. Compare D.E. 32 at ¶¶ 15, 25 

and D.E. 61-1 at ¶ 17. No free cruises were forthcoming, however. 

Compare D.E. 32 at ¶ 25 and D.E. 61-1 at ¶ 14. Instead, both complaints 

assert, the purported survey calls were a “front” for the caller to sell cruise 

and other vacation products to the call recipient. Compare D.E. 32 at ¶ 15 

and D.E. 61-1 at ¶ 14.

(Transfer Order at 3-4.) Moreover, legally, the plaintiffs in the Related Actions assert the same 

primary claims for defendants’ alleged violations of the TCPA, and seek the identical relief of 

statutory damages and an injunction requiring defendants to cease their telemarketing activities. 

(Compare Birchmeier Compl. at ¶¶ 30-33; with Wright Compl. at ¶¶ 32-36; see also Transfer 

Order at 4.)

8. Further, as demonstrated by the near-identical factual allegations, the actions can 

be appropriately related under to 40.4(a)(3), because the grievances alleged in both Wright and 

Birchmeier “grow out of the same transaction or occurrence” of defendants’ alleged 

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telemarketing campaign, in which—according to the plaintiffs’ cumulative allegations—each 

defendant plays a material and interdependent role. (See Transfer Order at 4.)

9. Finally, the Related Actions both seek to certify virtually identical nationwide 

classes under the TCPA for calls allegedly made without their consent:

Birchmeier Class Definition: All persons who have received a telephone 

call deployed by Defendants, purportedly on behalf of POA, to his/her 

cellular telephone number using an automatic telephone dialing system 

and/or using an artificial or prerecorded voice since May 24, 2008.

Wright Class Definition: All persons in the United States who received 

one or more calls on their cellular telephones made by Defendants (or 

made by entities acting on Defendants’ behalf) that purported to offer a 

survey, and who never provided their prior express consent to receive such 

calls.

(See Birchmeier Compl. at ¶ 24; Wright Compl., at ¶ 28.) Accordingly, relation is appropriate 

under 40.4(a)(4) as well.4

II. The Conditions for Reassignment Under Local Rule 40.4(b) are Similarly Satisfied.

10. Once a court has found two cases to be ‘related’ under LR 40.4(a), Local Rule 

40.4(b) provides that “a case may be reassigned to the calendar of another judge if it is found to 

be related to an earlier-numbered case assigned to that judge and each of the following criteria is 

met: (1) both cases are pending in this Court; (2) the handling of both cases by the same judge is 

likely to result in a substantial saving of judicial time and effort; (3) the earlier case has not 

progressed to the point where designating a later filed case as related would be likely to delay the 

proceedings in the earlier case substantially; and (4) the cases are susceptible of disposition in a 

single proceeding. N.D. Ill. L.R. 40.4(b). Like Rule 40.4(a), the requirements for reassignment 

under Rule 40.4(b) are also met here.

 4 While Wright’s complaint included a putative Breach Contract Class, as stated above, 

Plaintiff Wright does not intend to pursue this claim or to certify that putative class through a 

consolidated complaint should the Court grant this motion. 

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11. First, as Wright has been transferred from the Southern District of Florida, both 

Wright and Birchmeier are now pending in the Northern District of Illinois. See N.D. Ill. L.R. 

40.4(b)(1). 

12. Second, reassignment will “result in a substantial saving of judicial time and 

effort” by avoiding the inevitable duplication of effort and potential for inconsistent rulings that 

would otherwise result. See N.D. Ill. L.R. 40.4(b)(2). For example, as the legal and factual issues 

presented in the Related Actions are materially the same, the parties are presently seeking the 

same testimony, documents, and information from defendants and other third parties, in 

preparation to move for class certification. As such, reassignment and ultimate consolidation of 

the Related Actions will benefit all parties and conserve judicial resources. 

13. Third, neither of the Related Actions has progressed to the point where relating

the Wright matter would delay the proceedings in the Birchmeier action, as each is in the 

relatively early, and materially the same, stages of litigation. See N.D. Ill. L.R. 40.4(b)(3). 

Specifically, the parties have just moved beyond Defendants’ respective motions to dismiss in 

the Related Actions (see Birchmeier Dkt. 77, and Wright Dkt. 63,

5 respectively), are all engaging 

in class-related discovery and are all similarly waiting to take the depositions of key individuals.

14. Fourth, because the Related Actions present materially similar issues of fact and 

law, they are susceptible to disposition in a single proceeding. See N.D. Ill. L.R. 40.4(b)(4); see 

also Helferich Patent Licensing, L.L.C., 2012 WL 1368193, at *3 (holding that the condition 

proscribed in L.R. 40.4(b)(4) “is satisfied when the issues of law and fact are the same in both 

cases”).

 5 VOMT’s motion to dismiss in Wright was denied without prejudice in light of the Court’s 

ruling on the Parties’ Joint Motion to Transfer. (Dkt. 63.)

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15. Accordingly, the requirements of both Local Rules 40.4(a) and 40.4(b) are met,

and the Court should find that Birchmeier and the present Action are related, and that 

reassignment is appropriate.

II. The Wright Matter Should be Consolidated with this Case.

16. The cases at issue here also meet all of the requirements for consolidation under 

Fed. R. Civ. P. 42. 

17. Under Rule 42, a district court may act in its discretion to consolidate one or more 

related actions where they involve a common question of law or fact. Fed. R. Civ. P. 42(a); see 

also Star Ins. Co. v. Risk Mktg. Group, Inc., 561 F.3d 656, 660 (7th Cir. 2009). “The rule is 

designed to give the court broad discretion to decide how cases on its docket are to be tried so 

that the business of the court may be dispatched with expedition and economy while providing 

justice to the parties.” Blocker v. City of Chicago, 09-CV-7052, 2011 WL 1004137 (N.D. Ill. 

Mar. 16, 2011) (citing, 9 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 2381).

18. “The Seventh Circuit has emphasized that related cases pending within the same 

court should be consolidated before a single judge to avoid wasteful overlap.” Id. (citing, Blair v. 

Equifax Check Servs., 181 F.3d 832, 839 (7th Cir. 1999) (“[b]y far the best means of avoiding 

wasteful overlap when related suits are pending in the same court is to consolidated all before a 

single judge.”)).

19. Given the substantial overlap between the named parties, the claims alleged, and 

their factual and legal bases, these cases present a textbook scenario for consolidation. Again, the 

litigation of each of these matters will require discovery of the same evidence, resolution of the 

same pretrial motions, and ultimately, trials of the same legal and factual issues. Thus, 

consolidation presents the most efficient method for adjudication of these actions and will avoid 

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any “wasteful overlap” of such activities. See, e.g., Smith v. Ne. Illinois Univ., 98 C 3555, 2002 

WL 377725 (N.D. Ill. Feb. 28, 2002) (consolidation was appropriate where plaintiffs alleged 

nearly identical claims, which would be supported by the same evidence, and “[s]eparate trials 

would require a significant amount of overlapping testimony and evidence....”). 

20. Accordingly, Wright’s motion to consolidate this case and the Wright matter 

should be granted as well.

21. Finally, Wright has conferred with the Defendants in the Wright Action, and 

counsel for all parties involved in the Related Actions, about his intent to file this Motion, and all 

counsel have indicated that they have no objection to the relief sought herein.

CONCLUSION

For the foregoing reasons, Plaintiff David Wright, respectfully requests that the Court 

enter an Order (i) relating the Wright matter to this case and reassigning it to this Court, (ii) 

consolidating the Wright matter with this case, and (iii) providing such other and further relief as 

the Court deems equitable and just.

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Respectfully submitted,

DAVID WRIGHT,

Dated: February 8, 2013 By: __/s/ Rafey S. Balabanian________________

One of Plaintiff’s Attorneys

Rafey S. Balabanian 

Eve-Lynn J. Rapp 

Christopher L. Dore

EDELSON MCGUIRE, LLC

350 North LaSalle, Suite 1300

Chicago, Illinois 60654

Tel: (312) 589-6370

Fax: (312) 589-6378

rbalabanian@edelson.com

 6 A Proposed Order is attached hereto as Exhibit D.

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erapp@edelson.com

cdore@edelson.com

Scott D. Owens*

LAW OFFICE OF SCOTT D. OWENS, ESQ.

664 E. Hallandale Beach Boulevard

Hallandale, Florida 33009

Scott@ScottDOwens.com

*Pro Hac Admission Pending 

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CERTIFICATE OF SERVICE

I, Rafey S. Balabanian, an attorney, hereby certify that on February 8, 2013, I served the

above and foregoing Motion to Relate and Consolidate Cases, by causing true and accurate 

copies of such papers to sent to all counsel of record in this Action via the Court’s CM/ECF 

system, and the following counsel of record in the action of Wright v. The Berkley Group, Inc. et 

al., No. 13-cv-0093 (N.D. Ill.), by electronic mail: 

David L. Hartsell Richard Epstein 

dhartsell@mcguirewoods.com richard.epstein@gmlaw.com

Brian P. O’Meara Jeffrey Backman 

bomeara@mcguirewoods.com jeffrey.backman@gmlaw.com

McGuire Woods LLP GREENSPOON MARDER, P.A.

77 West Wacker Drive, Suite 1400 Trade Centre South

Chicago, Illinois 60601 100 W. Cypress Creek Road, Suite 700

Telephone: (312) 849-8100 Fort Lauderdale, FL 33309

Facsimile: (312) 849-3690 Tele: (954) 734-1853

Fax: (954) 213-0140

Eric Bilik Attorneys for Defendant Vacation

ebilik@mcguirewoods.com Ownership Marketing Tours, Inc. 

Emily Y. Rottmann 

erottmann@mcguirewoods.com

McGuire Woods LLP

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

Telephone: (904) 798-3200

Facsimile: (904) 798-3207

M. Peebles Harrison

peebles@outerbankslaw.com

Rose Harrison & Gilreath, P.C.

7000 Blue Jay St., Suite 1

P.O. Box 405

Kill Devil Hills, NC 27948

Telephone: (252) 480-1414

Facsimile: (242) 480-1765

Attorneys for Defendant The Berkley Group, Inc.

__/s/ Rafey S. Balabanian__________

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