Baker v. Certified Payment Processing, L.P.

Filing 13

OPINION entered by Judge Sue E. Myerscough on 06/16/2016. SEE WRITTEN OPINION. Defendant's Motion to Dismiss and Alternative Motion for More Definite Statement (d/e 6 ) is DENIED. Defendant shall file an Answer on or before July 7, 2016. (DM, ilcd)

E-FILED

Thursday, 16 June, 2016 04:05:51 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOHN BAKER, individually and
on behalf of all others similarly
situated,
Plaintiff,
v.
CERTIFIED PAYMENT
PROCESSING, L.P.,
Defendant.

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No. 16-cv-03002

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Motion to Dismiss and
Alternative Motion for More Definite Statement (d/e 6) filed by
Defendant Certified Payment Processing, L.P. Because Plaintiff
John Baker has sufficiently alleged a violation of the Telephone
Consumer Protection Act, the Motion is DENIED.
I. BACKGROUND
In January 2016, Plaintiff filed a Class Action Complaint
alleging that Defendant violated the Telephone Consumer
Protection Act, 47 U.S.C. § 227, et seq. (TCPA), by making

unauthorized calls to Plaintiff and others. The Complaint contains
the following allegations.
Defendant is a payment processing services company.
Compl. ¶ 1. To sell its payment processing products and services,
Defendant placed unauthorized calls to Plaintiff and the members
of the Class without prior express written consent in violation of
the TCPA. Id. ¶¶ 2, 12, 23. At all relevant times, Plaintiff’s and the
Class members’ telephone numbers were registered with the
National Do Not Call Registry. Id. ¶¶ 3, 24. Plaintiff seeks an
injunction, an award of statutory damages, reasonable attorney’s
fees, and costs. Id. ¶ 5.
As for himself, Plaintiff alleges that he has been a subscriber
of a telephone number ending in 8391 since at least 2007 and
registered that number on the Do Not Call List on October 23,
2007. Compl. ¶ 13. Plaintiff alleges that, from June 2015 until
the filing of the Class Action Complaint, Defendant placed
approximately 100 phone calls to Plaintiff’s telephone number in
an attempt to market and promote Defendant’s payment
processing products and services. Id. ¶ 14.

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Plaintiff also seeks to bring the action on behalf of a class
defined as follows:
All individuals and entities in the United States who,
within a 12-month period, received two or more
telemarketing phone calls from or on behalf of
Defendant Certified Payment Process, L.P., soliciting its
products and services at a time when the called number
was registered on the National Do Not Call Registry.
Excluded from the Class are Defendant and its
subsidiaries and affiliates; all persons who make a
timely election to be excluded from the Class;
governmental entities; and the judge to whom this case
is assigned and any immediate family members thereof.
Id. ¶ 25.
On February 26, 2016, Defendant filed its Motion to Dismiss
under Federal Rule of Civil Procedure 12(b)(6) and, in the
alternative, a Motion for More Definite Statement pursuant to
Federal Rule of Civil Procedure 12(e).
II. LEGAL STANDARD
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 458 (7th
Cir. 2007). To state a claim for relief, a plaintiff need only provide
a short and plain statement of the claim showing he is entitled to
relief and giving the defendant fair notice of the claims. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
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When considering a motion to dismiss under Rule 12(b)(6),
the Court construes the complaint in the light most favorable to
the plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in his favor. Id. However, the
complaint must set forth facts that plausibly demonstrate a claim
for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007). Plausibility means alleging factual content that allows the
Court to reasonably infer that the defendant is liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Merely reciting the elements of a cause of action or supporting
claims with conclusory statements is insufficient to state a cause
of action. Id.
Federal Rule of Civil Procedure 12(e) provides that a party
may move for a more definite statement if the pleading to which a
responsive pleading is allowed “is so vague or ambiguous that the
party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e).
A motion under Rule 12(e) is appropriate where a “pleading fails to
specify the allegations in a manner that provides sufficient notice.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002).

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III. THE TCPA
The TCPA authorized the Federal Communications
Commission (FCC) to promulgate regulations “to protect residential
telephone subscriber’s privacy rights to avoid receiving telephone
solicitations to which they object.” 47 U.S.C. § 227(c). The FCC
promulgated a rule which provides, among other things, that “[no]
person or entity shall initiate any telephone solicitation to: . . . [a]
residential telephone subscriber who has registered his or her
telephone number on the national do-not-call registry” (subject to
certain exceptions not applicable in this case). 47 C.F.R.
§ 64.1200(c)(2). A person who receives more than one telephone
call within any 12-month period by an entity in violation of the
regulations may bring a private cause of action. 47 U.S.C.
§ 227(c)(5).
IV. ANALYSIS
In the Motion to Dismiss, Defendant argues that Plaintiff fails
to state a claim because Plaintiff’s telephone number is not a
residential number protected by the TCPA but is a non-wireless
business number. Defendant further argues that, even if Plaintiff
uses the telephone number for both residential and business
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purposes, “such a mixed usage cannot convert a business number
that is ineligible for TCPA protection into one that is.” Def. Mem. at
6. Defendant asks the Court to take judicial notice of screenshots
from various websites listing Plaintiff’s telephone number as the
number for Plaintiff’s business, Right Way. Alternatively,
Defendant asserts that Plaintiff should be required to file an
amended complaint specifically detailing the full and complete
telephone number Plaintiff alleges Defendant called.
Addressing the last issue first, the Court notes that Plaintiff
has provided the full telephone number in response to Defendant’s
Motion to Dismiss and indicated that the number is a residential
number and is used as the number for Plaintiff’s home-based
carpet cleaning business. See Resp. at 2 n.2, at 7. The Court may
consider additional facts alleged in the response to a motion to
dismiss if the facts are consistent with the allegations of the
complaint. See, e.g., Smith v. Dart, 803 F.3d 304, 311 (7th Cir.
2015) (considering the facts alleged by the pro se plaintiff in letters
filed after the defendant filed a motion to dismiss); Early v. Banks
Life & Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992) (noting that “a
plaintiff is free, in defending against a motion to dismiss, to allege
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without evidentiary support any facts he pleases that are
consistent with the complaint, in order to show that there is a
state of facts within the scope of the complaint that if proved . . .
would entitle him to judgment”). Therefore, because these facts
are consistent with the Complaint, the Court will consider them.
As such, the request for a more definite statement is denied as
moot.
Defendant, in support of its Motion to Dismiss, asks the
Court to take judicial notice of several documents. These
documents include pages from various websites showing Plaintiff’s
telephone number as the telephone number for Plaintiff’s business,
Right Way.
This Court may take judicial notice of matters of public
record in ruling on a motion to dismiss under Rule 12(b)(6) without
converting the motion into a motion for summary judgment. See
White v. Keely, 814 F.3d 883, 885 n.2 (7th Cir. 2016); Ennenga v.
Starns, 677 F.3d 766, 773 (7th Cir. 2012). However, the Court
finds it unnecessary to do so because Plaintiff admits that his
telephone number is used both as his residential telephone

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number and the telephone number for his home-based business.
See Pl.’s Resp. at 2 n.1, 7, 9,
Nonetheless, this admission does not resolve the issue. The
FCC has declined to exempt home-based businesses from the donot call rules, stating:
We also decline to exempt from the do-not-call rules
those calls made to “home-based businesses”; rather, we
will review such calls as they are brought to our
attention to determine whether or not the call was made
to a residential subscriber.
Rules & Regulations Implementing the Telephone Consumer
Protection Act of 1991, 20 FCC Rcd. 3788, 3793 (2005), 70 Fed.
Reg. 19,330, 19,331 (April 13, 2005); see also, e.g., Bank v.
Independence Energy Group LLC, No. 12-cv-1369 (E.D. N.Y. Oct.
2, 2014) (denying motion to dismiss, noting that whether the
plaintiff’s phone number was used for the plaintiff’s business could
not be resolved without some limited discovery); Southwell v Mortg.
Investors Corp. of Ohio, Inc., No. C13-1289, 2014 WL 4057166, at
*3 (Aug. 14, 2014) (denying summary judgment and finding that
the putative class representative, Southwell, was a residential
telephone subscriber; the plaintiff argued that Southwell’s farm
and sale of sheep to friends did not constitute a business and that
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the FCC declined to exempt from the do-not-call rules calls made
to home-based businesses). On a motion to dismiss, the Court
must accept all well-pleaded allegations as true and construe all
reasonable inferences in Plaintiff’s favor. See Tamayo, 526 F.3d at
1081. Construing all reasonable inferences in favor of Plaintiff,
Plaintiff has alleged a TCPA claim by alleging that Defendant made
calls to Plaintiff’s residential number that is registered on the
National Do Not Call Registry.
V. CONCLUSION
For the reasons stated, Defendant’s Motion to Dismiss and
Alternative Motion for More Definite Statement (d/e 6) is DENIED.
Defendant shall file an Answer on or before July 7, 2016.
ENTER: June 16, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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