FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PHILIP CHARVAT on behalf of himself and )

others similarly situated, )

)

Plaintiff, ) Case No. 1:12-cv-5746

)

v. ) Judge Zagel

)

TRAVEL SERVICES, ) Magistrate Judge Valdez

CARNIVAL CORPORATION & PLC, )

ROYAL CARIBBEAN INTERNATIONAL, )

NORWEGIAN CRUISE LINE, )

)

Defendants. )

DEFENDANTS, ROYAL CARIBBEAN INTERNATIONAL’S 

AND NORWEGIAN CRUISE LINE’S,

MEMORANDUM IN SUPPORT OF 

MOTION TO DISMISS AMENDED CLASS ACTION COMPLAINT

Catherine J. MacIvor

Jeffrey E. Foreman

FOREMAN FRIEDMAN, PA

One Biscayne Tower, Suite 2300

2 South Biscayne Boulevard

Miami, FL 33131

Phone: 305-358-6555

Fax: 305-374-9077

Attorneys for Defendants, 

Royal Caribbean Cruises Ltd.

NCL (Bahamas) Ltd.

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I. Introduction

Phillip Charvat (“Charvat”), brought this putative class action pursuant to the Telephone 

Consumer Protection Act of 1991 (“TCPA) wherein he confuses separate and distinct TCPA statutory 

provisions and agency law in an attempt to try to state a claim for relief. The result is that his Amended 

Class Action Complaint (“ACAC”) distorts the TCPA statute and interpreting regulations in a manner 

that was never intended by Congress or by the Federal Communications Commission (“FCC”), the 

administrative agency charged with interpreting the law. For all of the reasons set forth more specifically 

below, Defendants, Royal Caribbean International (“RCI”) and Norwegian Cruise Line “NCL”) 

respectfully request this Court to enter an Order dismissing Charvat’s “ACAC.” 

II. The ACAC fails to plead a proper basis for venue pursuant to Rule 12(b)(3)

Charvat, a serial TCPA plaintiff,1summarily alleges that venue in this jurisdiction is proper 

“...because one or more of the Defendants reside in this District” without providing any legal basis for 

venue. While it is not entirely clear from the ACAC, Charvat may be seeking to establish venue under 28 

U.S.C. § 1391(b), because the ACAC makes a fleeting reference to RCI’s and NCL’s residency. [DE 23

¶ 5]. It is Charvat’s burden to properly plead venue and Charvat retains that burden even where, as here, 

RCI and NCL move to dismiss. Wendt v. Handler, Thayer & Duggan, LLC, 613 F. Supp. 2d 1021, 1027 

(N.D. Ill. 2009); Allison v. Crc Ins. Servs., 2010 U.S. Dist. LEXIS 128480 at *4 (N.D. Ill. 2010). In 

federal question cases, such as this one, if Charvat is claiming venue under section 1391(b), he must 

allege: (1) all defendants reside in Illinois; (2) a substantial part of the events giving rise to his TCPA 

claim occurred in the Northern District of Illinois; or (3) he could not bring his TCPA claim in any other 

 

1

See Charvat v. Echostar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010); Charvat v. GVN Mich., Inc., 561 F.3d 623 

(6th Cir. 2009); Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011); Charvat v. Dispatch Consumer Servs., 95 Ohio 

St. 3d 505 (Ohio 2002); Charvat v. Telelytics, LLC, 2006 Ohio 4623 (Ohio Ct. App. 2006); Charvat v. Ryan, 116 

Ohio St. 3d 394 (Ohio 2007); Charvat v. DFS Servs. LLC, 781 F. Supp. 2d 588 (Ohio Southern Dist. Ct. 2011);

State ex rel. Charvat v. Frye, 114 Ohio St. 3d 76 (Ohio 2007); Charvat v. Farmers Ins. Columbus, Inc., 178 Ohio 

App. 3d 118 (10th Dist. Ohio Ct. App. 2008); Charvat v. ATW, Inc., 127 Ohio App. 3d 288 (10th Dist. Ohio Ct. 

App. 1998); Charvat v. Crawford, 155 Ohio App. 3d 161 (10th Dist. Ohio Ct. App. 2003); Charvat v. Colorado 

Prime, 1998 Ohio App. LEXIS 4292 (10th Dist. Ohio Ct. App. 1998); Charvat v. Credit Found. of Am., 2008 Ohio 

6820 (10th Dist. Ohio Ct. App. (2008)

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district and this honorable Court has personal jurisdiction over at least one defendant. Flag Co. v. 

Maynard, 376 F. Supp. 2d 849, 857 (N.D. Ill. 2005); 28 U.S.C. § 1391(b) (2006). Instead, Charvat fails to 

allege any venue allegations under any statute and just states a legal conclusion that venue simply exists. 

[DE 23 ¶5]. Charvat never alleged that: (1) all defendants reside in Illinois, and he cannot because the 

face of his pleading establishes that they do not., (2) “a substantial part of the events” giving rise to 

Charvat’s claim occurred in the Northern District of Illinois and instead alleges his Ohio residence 

received calls from a purported Illinois business on behalf of three corporations alleged to be 

headquartered in Florida; and (3) his claim could not be brought in any other district. See Ginmar 

Corporate Promotions, Inc. v. Cardinal Health, Inc., 2008 U.S. Dist. LEXIS 92752 at *11 (N.D. Ill. Nov. 

12, 2008) (“[a] plaintiff's choice of forum is entitled to less deference where [. . .] it is not the location of 

the material events”); see also J.B. Custom, Inc. v. Amadeo Rossi, S.A., 2011 U.S. Dist. LEXIS 3623, *15

(N.D. Ind. 2011) (finding a plaintiff cannot plead venue under section 1391(b)(3) unless he shows that 

sections 1391(b)(1) and 1391(b)(2) fail “to produce at least one viable venue). The ACAC’s venue 

allegation is simply a legally insufficient conclusory statement, which subjects the ACAC to dismissal.

[DE 23 ¶5]. RCI and NCL, therefore, respectfully request this honorable Court to enter an Order 

dismissing the ACAC pursuant to Federal Rule of Civil Procedure 12(b)(3).

III. The ACAC Fails to Name the Correct Party Pursuant to FED. R. CIV. PRO. 17(b)

Charvat’s claims against NCL are also subject to dismissal pursuant to Federal Rule of Civil 

Procedure 17(b), because the ACAC names NCL’s trade name, “Norwegian Cruise Line,” as a defendant 

and Charvat cannot bring suit against a trade name. [DE 23 ¶¶ 1, 10]. In order to properly name a 

defendant, Charvat must name the legal entity that can be sued. DeGenova v. Sheriff of DuPage County, 

209 F.3d 973, 976 n. 2 (7th Cir. 2000) (citing Magnuson v. Cassarella, 812 F.Supp. 824, 827 (N.D. Ill. 

1992)); see also Com-Pac Int'l, Inc. v. Packmate Co., 2007 U.S. Dist. LEXIS 62531 at *5 (S.D. Ill. 2007)

(granting motion to dismiss because plaintiff cannot sue a trade name) (citing Steel v. Hahn Property 

Management Corp., 1994 U.S. App. LEXIS 4369 at *2 (7th Cir. 1994)); see also Diesel Mach., Inc. v. 

Manitowoc Crane Group, 777 F. Supp. 2d 1198, 1213 (Dist. S.D. 2011). As a trade name, “Norwegian 

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Cruise Line” is merely a description of the corporation doing business under that name and does not have 

a separate legal existence such that Charvat can bring a claim against it. See Diesel Mach., 777 F. Supp. 

2d at 1213. Therefore, NCL respectfully requests that this honorable Court dismiss the ACAC pursuant to 

Federal Rule of Civil Procedure 17(b) as to “Norwegian Cruise Line.”

IV. The ACAC is vague, ambiguous, nearly factually bereft and is premised upon one legal 

conclusion after another in derogation of Rules 8(a)(2), 12(b)(1), 12(b)(6) and Bell Atlantic v. 

Twombly

Charvat’s ACAC is nearly bereft of facts indicating that he has set forth plausible claims for 

relief. Even taking all of the allegations as true, and in the light most favorable to Charvat, the ACAC 

cannot survive a motion to dismiss based upon the wholly inadequate allegations set forth in his amended 

pleading. Charvat must allege more than mere labels and conclusions and can only survive a motion to 

dismiss if he alleges facts beyond a blanket assertion of entitlement to relief. See Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 n. 3 (2007). After Twombly, courts have dismissed complaints under Rule 

12(b)(6) because plaintiffs are required to provide “more than labels and conclusions.” Lance Eugene 

Hall v. Swartz, et al., 2012 U.S. Dist. LEXIS 70075 at *3-4 (N.D. Ill. 2012) (citing Twombly, 550 U.S. at

555). When accepted as true, “the complaint must contain sufficient factual matter [. . .] to state a claim to 

relief that is plausible on its face.” Id. Thus, a “[p]laintiff must do more than plead facts that are 

‘consistent with Defendant’s liability’ because that only shows the possibility, not the plausibility, of their 

entitlement to relief.” Winchester v. Marketti, 2012 U.S. Dist. LEXIS 82761 at *6 (N.D. Ill. 2012). 

Notwithstanding Twombly and its requirement that Charvat must do more than simply state the factual 

and legal elements of a claim, that is precisely what Charvat has done, as explained more fully below. In 

a case, such as this, that may be costly or time consuming to litigate, “a district court must retain the 

power to insist upon some specificity in the pleading before allowing a potentially massive factual 

controversy to proceed.” Twombly, 550 U.S. at 558. The ACAC thus fails to state claims for relief under 

Rule 8(a)(2) and 12(b)(1) and (6) as to each and every count based upon vague, ambiguous, formulaic, 

and conclusory assertions all of which are set forth more fully below. Charvat’s claim does not state any 

plausible claim for relief against RCI or NCL.

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A. Charvat fails to state a claim under Count I, 47 USC § 227(b), because the ACAC fails to 

allege that RCI and NCL initiated the telephone calls and fails to properly allege agency

In Count I, Charvat alleges that both RCI and NCL violated §227(b) of the TCPA, which 

provides that:

It shall be unlawful for any person ... to initiate 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...

47 U.S.C. §227(b)(1)(B) (emphasis added). [DE 23 ¶69-73]. However, the ACAC specifically avers that 

Defendant, Travel Services, initiated the calls and not RCI or NCL and as such RCI and NCL have no 

liability under the section of the statute alleged by Charvat. [DE 23 at ¶¶ 11-38]. Charvat nonetheless

attempts to selectively import language from §227(c) into this Count by claiming that “[u]nder the TCPA, 

as interpreted by the FCC, a person or entity can be liable for calls made on its behalf even if that person 

did not directly initiate those calls.” [DE 23 ¶43]. (emphasis added). When Congress intended to impose 

liability when one entity was acting “on behalf of” another entity, Congress included such language in the 

TCPA under §227(c) not §227(b). See e.g., 47 U.S.C. § 227(c)(5) (providing a private cause of action for 

an individual who has “received more than one telephone call within any 12-month period by or on behalf 

of the same entity.” (Emphasis added)). “[W]here Congress includes particular language in one section of 

a statute but omits it in another section of the same Act, it is generally presumed that Congress acts 

intentionally and purposefully in the disparate inclusion or exclusion.” Immigration & Naturalization 

Serv. v. Cardozo-Fonseca, 480 U.S. 421, 432 (1987). Thus, Charvat is not legally entitled to state a claim 

for relief under 47 USC §227(b) because Charvat did not allege that the calls were initiated by RCI or 

NCL nor does subsection (b) allow for calls made on behalf of another. See Peter Strojnik, P.C. v. 

SignaLife, Inc., 2009 U.S. Dist. LEXIS 22295 at *8 (D. Ariz. 2009) (dismissing § 227(b) TCPA claim 

against defendant company because “plaintiff failed to present admissible evidence showing” defendant 

made the solicitation); Consumer Crusade, Inc. v. JD&T Enters., 2006 U.S. Dist. LEXIS 42000 at *13-14 

(D. Colo. 2006) (affirming dismissal of § 227(b) TCPA claim where defendants did not personally make 

solicitation and did not know the identities of the recipients). 

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Conceding that RCI and NCL did not initiate the calls, Charvat is thus unable to establish direct 

liability under § 227(b), and instead attempts to assert some sort of vicarious liability based on a theory of 

agency. Charvat’s ACAC simply avers the legal and factual conclusion that “Defendants are responsible 

for the illegal actions of their agents” and “for any illegal actions conducted in the course of any joint 

venture with a third party.” [DE 23 ¶¶50-51]. Charvat, however, fails to plead a factual or legal basis for 

an agency relationship between RCI and NCL and Travel Services. [DE 23 at ¶ 11-38, 43-46, 50]. In 

order for there to be liability against RCI and NCL under §227(b), Charvat must plead an agency 

relationship between the initiator of the call and RCI and NCL. Throughout the ACAC, Charvat alleges 

“upon information and belief” Travel Services representatives claimed they were vendors and promoters 

for the cruise lines, that “upon information and belief” RCI and NCL hired Travel Services to fill empty 

cabins, and that RCI and NCL “accepted customers and business from Travel Services.2” [DE 23 ¶¶14, 

15, 27, 33, 52, 53]. Such threadbare allegations are insufficient under Illinois law to support the existence 

of an agency relationship. See Williams v. Ford Motor Co., 990 F. Supp. 551, 554 (N.D. Ill. 1997); see

Valenti v. Qualex, Inc., 970 F.2d 363, 368 (7th Cir. 1992); see also A.H. Gruetzmacher & Co. v. MasseyFerguson, Inc., 512 F. Supp. 194, 198 (N.D. Ill. 1984) (“Under Illinois law, there is no presumption of an 

agency relationship.”); see also Williams, 990 F. Supp. at 554; Valenti, 970 F.2d at 368; Sefton v. Toyota 

Motor Sales U.S.A., Inc., 2010 U.S. Dist. LEXIS 37036 AT 10-11 (N.D. Ill. 2010) (holding a plaintiff 

must make “allegations concerning an actual agency relationship beyond purely conclusory statements.”). 

Specifically, Charvat must allege that RCI and NCL controlled the “manner and method” in which Travel 

Services performed its solicitations, which he has not alleged and cannot, since RCI and NCL have no 

agreements with Travel Services. Peterson v. H&R Block Tax Services, Inc., 971 F. Supp. 1204, 1213 

(N.D. Ill. 1997) (“The ‘key consideration in determining whether an agency relationship exists is whether 

the principal had the right to control the ‘manner and method’ in which the agent performs work.”); see

also Mey v. Pinnacle Security, LLC, 2012 U.S. Dist. LEXIS 129267 at 12-13 (N.D. W. Va. 2012); 

 

2 The ACAC actually states these calls were done through Travel Services and “similar outfits,” but fails to provide 

any facts about these purported “similar outfits” at all. [DE 23 ¶¶53, 54].

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Thomas v. Taco Bell Corp., 2012 U.S. Dist. LEXIS 107097 at *13 (C.D. Cal. 2012). Moreover, Charvat 

must further allege that RCI and NCL either confirmed or ratified an agency relationship with Travel 

Services, because Travel Services cannot unilaterally create an agency relationship with RCI and NCL by 

merely stating that it represents the cruise lines. Curran v. Kwon, 1985 WL 1719 at *2 (N.D. Ill. 1985) 

(“an agent cannot ‘bootstrap’ his own authority”). Anyone, anywhere, can make a statement that they are 

doing something for another, but that does not create an agency relationship under the law.

The ACAC’s allegations are legally insufficient to establish agency between RCI, NCL and 

Travel Services. First, Charvat’s statements that RCI and NCL are responsible for the actions of their 

agents and actions conducted in joint venture are merely conclusory statements. See Dolter v. Keene’s 

Transfer, Inc., 2008 U.S. Dist. LEXIS 59436 at *7-8 (S.D. Ill. 2008) (citing Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007)) (holding a plaintiff fails to state a claim for liability on agency theory where the 

complaint contains only “labels and conclusions”). Further, the conclusory assertions that Travel Services 

was a vendor and promoter for RCI and NCL, that RCI and NCL hired Travel Services, and that RCI and 

NCL accepted customers and business from Travel Services fail to properly allege agency, because 

Charvat never alleges how RCI and NCL controlled the manner and method of Travel Services’ 

solicitations and that RCI and NCL confirmed or ratified that Travel Services was their agent. While 

Charvat will surely argue that is what discovery will show, that is not a plausible claim for relief and 

discovery should not be a vehicle to allow a plaintiff to go on a fishing expedition to see if he has a claim, 

but rather he must first have a plausible claim before discovery is allowed under Twombly and 

interpreting legal authorities. Finally, even if allowed to amend, the amendment would be futile because 

Charvat cannot allege an agency relationship because, as a matter of law, travel agents have no agency 

relationship with RCI and NCL since they represent the individuals who are booking the tickets, not the 

cruise lines. See Pheasant Run, Inc. v. Xerox Corp., 1986 U.S. Dist. LEXIS 30340 at *21 (N.D. Ill. Jan. 

16, 1986) (“a travel agent is presumed to be the agent of the traveler”); Douglas v. Steele, 816 P.2d 586, 

589 (Okla. Ct. App. 1991) (travel agent was not an agent of the company whose travel packages she sold 

to her customers, but rather was an agent of the customers); Das v. Royal Jordanian Airlines, 766 F. 

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Supp. 169, 171 (S.D.N.Y. 1991) (travel service was passenger’s agent); Grigsby v. O.K. Travel, 118 Ohio 

App. 3d 671, 675 (Ohio Ct. App. 1997) (“[a] travel agent is a special agent for the traveler”). 

B. Charvat fails to state a claim under Count II, 47 USC §227(c), because Charvat 

wrongfully premises his claim on violations of 227(d) and the ACAC fails to allege that

Charvat or the family members with whom he lives are on the national “Do-Not-Call 

Registry” or Travel Services’ do-not-call list

Charvat alleges that Travel Services made the calls “in violation of the TCPA’s identification 

requirements” and that he is therefore entitled to statutory damages. [DE 23 ¶¶75-78, 81]. The ACAC 

states that a telemarketer “must provide the called party with (1) the name of the individual caller, (2) the 

name of the entities on whose behalf the call is being made, and (3) a phone number or address to readily 

identify the calling party” and cites to 47 C.F.R. § 64.1200(a)(d)(4).3Id. The ACAC further refers to an 

FCC Order requiring telemarketer to provide this information without request. [DE 23 ¶ 48]. Charvat, 

however, misstates that the identification requirements are pursuant to section 227(c), because the 

language he uses is actually found in section 227(d), which does not allow a private right of action or 

provide for statutory damages. 47 U.S.C. § 227(d)(3)(A); Worsham v. Ehrlich, 181 Md. App. 711, 718

(Sp. App. Ct. Md. 2008) (finding no private right of action under § 227(d); Boydston v. Asset Acceptance, 

LLC, 496 F. Supp. 2d 1101, 1106 (N.D.Cal.2007) (“the remedy for violations of the procedural and 

technical standards confers no private right of action”); Culbreath v. Golding Enterprises, LLC, 872 

N.E.2d 284, 288 (Sup. Ct. Ohio 2007) (“unlike its counterparts in subsections 227(b) and 227(c), 

subsection 227(d) does not provide a private cause of action for its violations”); Klein v. Vision Lab 

Telecomms., Inc., 399 F.Supp.2d 528, 539 (S.D.N.Y.2005); USA Tax Center, Inc. v. Office Warehouse 

Wholesale, LLC, 160 P.3d 428, 434 (Colo. Ct. App. 2007). Even if §227(d) provided a private right of 

action, Charvat’s own Exhibits A, D, and F demonstrate that Travel Services’ representatives complied 

with section 227(d)’s identification requirements. [DE 23 Ex. A, D, F].

Even if Charvat could bring a § 227(c) claim for § 227(d) violations, which he cannot, he 

nevertheless fails to state a claim under § 227(c). The ACAC alleges only that RCI and NCL “can be 

 

3 There is no 47 C.F.R. § 64.1200(a)(d)(4) in the Code of Federal Regulations. Defendants RCI and NCL believe 

Charvat intended to cite 47 C.F.R. § 64.1200(d)(4), which contains the relevant identification requirements.

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liable for calls made on its behalf even if that person or entity did not directly initiate those calls” and then 

cites FCC rulings. [DE 23 at ¶ ¶43-46. Under § 227(c), Charvat must allege that he has received more 

than one call in a 12-month period, by or on behalf of RCI and NCL, that violates § 227(c)’s do-not-call 

provisions. 47 U.S.C. § 227(c)(5). First, the ACAC alleges that there was only one call in which the 

Travel Services representative did not comply with § 227(d)’s identification requirements, because the 

call was prematurely terminated. [DE 23 Ex. C]. In each of the three remaining calls, Charvat concedes 

that the identification occurred. [DE 23 ¶¶11-16, 25-29, 30-36]. Thus, even if § 227(c) provided a private 

right of action for § 227(d)’s violations, the ACAC fails to allege that Charvat received more than one call 

in violation of 227(d), which does not even meet the requirements for the statute. Moreover, Charvat 

appears to allege a violation of 47 C.F.R. § 64.1200(d)(4) by claiming Travel Services representatives did 

not provide their identification information “automatically” before Charvat requested it and cites a 1995 

FCC opinion. [DE 23 ¶¶ 18, 29, 36, 48]. The opinion stated that telemarketers should provide 

identification information without request. 10 FCC Rcd. 12391 ¶ 6-7 (1995). The FCC’s decision was 

meant to prevent a telemarketer from ending a call without providing identification information, not to 

create a violation if the telemarketer provides the information in response to a request. Even if the FCC 

intended to create such a violation, as discussed above, it is not a violation for which a private right of 

action exists.

Second, Charvat fails to allege that he is on the national Do-Not-Call registry or on Travel 

Services’ do-not-call list. In fact, Charvat, a serial plaintiff who repeatedly files TCPA claims, of course 

refuses to register his home phone numbers on the national Do-Not-Call Registry because that would 

disrupt his cottage industry TCPA lawsuits. In State ex rel. Charvat v. Frye, Charvat submitted an 

affidavit wherein he stated “that (1) he had not registered either of his home telephone numbers with the 

national do-not-call registry” and that “(2) he did not intend to register his telephone numbers on the 

national do-not-call registry in the future.” 868 N.E.2d 270, 272 (Ohio S.Ct. 2007) (emphasis added). 

Certainly if he did so, he would have less opportunity to continue with his cottage industry TCPA filings. 

Moreover, the recordings of the calls he received show that Charvat did not request to be placed on Travel 

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Services’ do-not-call list. [DE 23 Ex. A, C, D, F, Unffocial transcripts of same attached hereto as Exhibit 

“A”].

C. Charvat’s class allegations also fail under Rule 8(a), 12(b)(1), 12(b)(6) and Twombly

In order to determine whether a class action can go forward, it must be analyzed in the framework 

of the substantive cause of action, which Charvat fails to properly plead. For all of the reasons set forth, 

Charvat has failed to properly allege a claim for relief under the TCPA and traditional agency theory or 

injunctive relief (see infra) and, therefore, cannot assert a legal basis for a class action regarding same 

under Federal Rule of Civil Procedure 23. See Guarantee Ins. Agency Co. v. Mid-Continental Realty 

Corp., 57 F.R.D. 555, 563 (N.D Ill. 1972) (“Before one can represent others in a class action, the named 

plaintiff must state a valid claim of his own”). The class definition is similarly problematic, because it is 

framed in terms of the substantive cause of action, which is defective. [DE 23 ¶58]. The class definition is 

vague, because Charvat brings his claim under § 227(b), which contains no “on behalf of” language, yet 

the class definition includes putative class members who were purportedly contacted “on behalf of” RCI 

and NCL. [DE 23 ¶ 58]. Moreover, Charvat has included a subclass of cellular telephone users, but he 

has only alleged receiving calls on his residential telephone line and thus he has no Article III standing to 

represent a subclass of cellular telephone users. The ACAC is therefore subject to dismissal as to the 

cellular telephone users under Fed. R. Civ. P. 12(b)(1); Ormond v. Anthem, Inc., 2009 U.S. Dist. LEXIS 

1919 at *8 (S.D. Ind.) (“no named plaintiff has standing to represent this new proposed ‘subclass’ because 

no plaintiff is a member of that ‘subclass’). Courts have dismissed class allegations where the class 

definition is not ascertainable. See Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 496 (7th Cir. 2012) 

(holding that a class action cannot be maintained where the class is “not adequately defined or nearly 

ascertainable); see Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980) (“plaintiff class cannot be 

maintained” where “the proposed class of plaintiffs is so highly diverse and so difficult to identify that it 

is not adequately defined or nearly ascertainable”); see also Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 

1981); 5 James W. Moore et al., Moore’s Federal Practice § 23.21[1], at 23-47 (Matthew Bender 3d ed. 

1997) (“It is axiomatic that in order for a class action to be certified, a class must exist.”). 

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In addition to the failure to adequately define the class, the allegations as to each and every 

requirement for a class action under Rule 23 are purely legal conclusions without any factual support 

whatsoever in violation of Rules 8(a)(2), 12(b)(6), and Twombly. It is Charvat’s burden to establish that 

the requirements of Rule 23 have been met. See Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th 

Cir. 1977); Hyderi v. Wash. Mut. Bank, FA, 235 F.R.D. 390, 394 (N.D. Ill. 2006). Charvat fails to meet 

this burden by making conclusory allegations. See Trotter v. Klincar, 748 F.2d 1177, 1185 n. 10 (7th Cir. 

1984). Charvat has failed to meet his burden of supporting his legal conclusions with factual support for 

class certification. Simple circular legal conclusions made in the ACAC do not suffice.

As for numerosity, Charvat simply alleges that “[o]n information and belief, the potential class 

members constitutes (sic) a class so numerous that joinder of all class members is impracticable” and 

despite his supposition that four alleged telephone calls support a nationwide class, there is not a single 

fact alleged in the ACAC to support that contention. [DE 23 ¶ 59]. Charvat should have some basis to 

allege numerosity other than “information and belief,” otherwise the class allegation is a fishing 

expedition where Charvat will make a claim now and find support later, which fails to meet the 

requirements of Rule 8(a) and Twombly. Commonality is also alleged in a similarly conclusory manner 

and, given the quantum problems set forth in detail above, Charvat has failed to state a substantive claim 

for relief under the TCPA and provides a weak basis for purportedly common questions of law and fact 

that confuse and borrow from various TCPA provisions. [DE 23 ¶ 64]. Moreover, Charvat has alleged 

that the common questions of law and fact are set forth in paragraph 64 are “including but not limited to” 

those set forth in the ACAC. It is inappropriate to allege some common issues of fact and law, but not 

others, so that Charvat can at any time claim different common facts or legal issues without ever placing 

RCI or NCL on notice of same, much less alleging a plausible basis for same. Allegations relating to the 

typicality requirement are equally conclusory, ambiguous and improper. [DE 23 ¶ 61]. Charvat simply 

avers that his “claims are typical of the claims of the class,” but there is not a single fact to support that 

conclusion of law and fact.

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In addition to failing to properly plead Rule 23(a) requirements for a class action, Charvat has 

even failed to allege what subsection of Rule 23(b) serves as the basis for his proposed class. [DE 23

¶ 57]. This leaves RCI and NCL incapable of formulating an answer since it is completely unclear from 

the ACAC as to which subsection Charvat seeks certification and therefore it is impossible for RCI and 

NCL to formulate defenses to same. Charvat has, however, referred to questions of law and fact that 

purportedly predominate over questions affecting individual members, which would imply a Rule 

23(b)(3) class, yet Charvat has also brought a claim for injunctive relief which would implicate other 

23(b) subsections. [DE 23 at ¶¶ 65-67, 79-81]. It is entirely unclear from the ACAC as to what Charvat is 

seeking in terms of class relief because there is nothing whatsoever in the class allegations regarding 

damages or injunctive relief and it is unclear from the ACAC as to whether Count I or Count II is 

applicable to the putative class. Even if Charvat is alleging a Rule 23(b)(3) class action, the requirements 

of predominance and superiority that Charvat appears to allege are similarly conclusory. For example, 

the ACAC simply states that “[c]ommon questions of law and fact predominate over questions affecting 

only individual members of the class and a class action is the superior method for fair and efficient 

adjudication of the controversy,” which simply regurgitates the requirements of Rule 23. [DE 23 ¶ 65]. 

Such allegations are vague, circular and so devoid of facts that RCI and NCL are unable to answer them. 

None of the class action allegations even remotely comes close to stating specific facts to support this 

putative class action under Rules 8(a)(2), 12(b)(6) and, therefore, RCI and NCL respectfully request this 

Court to dismiss the class action allegations in the ACAC. 

D. Charvat is not entitled to injunctive relief because the ACAC fails to state a claim upon 

which relief may be granted and he has not yet succeeded on the merits

Charvat requests a permanent injunction ordering all defendants “to immediately cease engaging 

in the unsolicited telemarketing in violation of the TCPA.” [DE 23 ¶ 80-81]. In order to obtain a 

permanent injunction, Charvat must state a claim upon which relief may be granted and must succeed on 

the merits of that claim, which he has not done. Potts v. Brown, 66 Fed. Appx. 635, 638 (7th Cir. 2003) 

(denying as moot a request for injunctive relief where the complaint was dismissed for failure to state a 

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claim); Michels v. United States Olympic Committee, 741 F.2d 155, 156 (7th Cir. 1984) (dissolving an 

injunction where plaintiff had no cause of action under the relevant statute); Plummer v. AICPA, 97 F.3d 

220, 229 (7th Cir. 1996) (“when the plaintiff is seeking a permanent injunction [. . .] the issue is not 

whether plaintiff has demonstrated a reasonable likelihood of success on the merits, but whether he has in 

fact succeeded on the merits.”).

V. Conclusion

For the reasons set forth above, Defendants, RCI and NCL, respectfully requests this honorable 

Court to enter an Order dismissing the ACAC pursuant to Federal Rules of Civil Procedure 8(a)(2), 

12(b)(1), (3), 12(b)(6), 17(b), 23 and the prevailing legal authorities relating thereto, and for any and all 

further relief that this honorable Court deems just and proper.

Respectfully submitted,

 By: /s/ Catherine J. MacIvor

Catherine J. MacIvor

cmacivor@fflegal.com

Pro Hac Vice

 Jeffrey E. Foreman

jforeman@fflegal.com

ARDC #6193309

FOREMAN FRIEDMAN, PA

One Biscayne Tower, Suite 2300

2 South Biscayne Boulevard

Miami, FL 33131

Phone: 305-358-6555

Fax: 305-374-9077

Attorneys for Defendants, 

Royal Caribbean Cruises Ltd.

NCL (Bahamas) Ltd.

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CERTIFICATE OF SERVICE

On October 3, 2012, I electronically submitted the foregoing document with the clerk of 

court for the U.S. District Court, Northern District of Illinois, using the electronic case filing system 

of the court, which will automatically send notice of the filing to all counsel of record. I hereby 

certify that I have served all counsel and/or pro se parties of record electronically in accordance with 

the Federal Rules of Civil Procedure. 

/s/ Catherine J. MacIvor

Catherine J. MacIvor

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SERVICE LIST

CASE NO. 12-CV-5746

Alexander H. Burke

aburke@burkelawllc.com

Burke Law Offices, LLC

155 N. Michigan Ave., Suite 9020

Chicago, IL 60601

Tel: 312-729-5288/Fax: 312-729-5289

Edward A. Broderick

Broderick Law, P.C.

125 Summer Street, Suite 1030

Boston, MA 02110

Tel: 617-738-7080

Attorneys for Plaintiff

Elliot S. Wiczer (ARDC #6208432) 

John M. Sheldon (ARDC #6256666) 

Foreman Friedman, PA 

500 Skokie Blvd., Suite 325 

Northbrook, IL 60062 

847-849-4850 

Catherine J. MacIvor (Pro Hac Vice)

Jeffrey E. Foreman (ARDC #6193309) 

Foreman Friedman, PA 

2 South Biscayne Blvd., Suite 2300 

Miami, FL 33131 

305-358-6555 

Attorneys for Defendant

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