Franklin v. DePaul University

Filing 27

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 7/28/17.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICKY R. FRANKLIN,
Plaintiff,
v.
DEPAUL UNIVERSITY,
Defendant.

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16 C 8612
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Ricky R. Franklin has filed this suit against Defendant DePaul University
alleging violations of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227.
DePaul moves to dismiss the complaint for failure to state a claim pursuant to Federal Rule of
Civil Procedure (“Rule”) 12(b)(6). In addition, DePaul challenges Franklin’s standing to bring
this case. For the reasons set forth below, DePaul’s motion to dismiss is denied.
Factual Background
According to Franklin, DePaul sent a series of unsolicited text messages to his personal
cell phone. On November 18, 2015, Franklin received an automated text message from short
code #467467 to his cell phone. Compl. ¶ 20, ECF No. 6. The text read, “Thanks for opting in!
Watch for important news/deadlines from Depaul (maximum one per week). Message and data
rates apply[.] Text OUTDP to opt out.” Id. (spacing added). Franklin alleges that he never
provided his cell phone number to DePaul, nor did he give prior express consent to be called. Id.
¶ 25. Upon receiving the initial message, he immediately responded by replying “Out.” Id. ¶ 21.
DePaul’s automated system responded with: “ShopText: Sorry we didn’t understand your text.
Or your session expired. Check the spelling and reply w/ the keyword. No quotes or spaces.

For help, reply HELP.” Id. ¶ 22 (spacing added). Franklin states that he sent several subsequent
text messages in an attempt to stop the messaging campaign.

Id. ¶ 23.

Nevertheless, he

continued to receive at least seventeen unsolicited text messages after telling DePaul to stop
contacting him. Id. ¶ 24. He also alleges that he continues to receive such text messages to the
present day. Id. Based on these facts, Franklin claims that DePaul violated the TCPA.
Analysis
DePaul moves to dismiss Franklin’s complaint for lack of standing under Rule 12(b)(1)
and for failure to state a claim under Rule 12(b)(6). Because the Court’s “first task, as it is in
every case, is to determine whether [it has] subject matter jurisdiction” over the plaintiff’s claims,
Swan v. Bd. of Educ. of City of Chi., 956 F. Supp. 2d 913, 917 (N.D. Ill. 2013) (quoting Grinnell
Mut. Reins. Co. v. Haight, 697 F.3d 582, 584 (7th Cir. 2012)) (internal quotation marks omitted),
the Court will address the issue of standing before turning to the sufficiency of Franklin’s
allegations under Rule 12(b)(6). 1
I.

Rule 12(b)(1): Standing
Under Rule 12(b)(1), a defendant may move to dismiss claims over which the federal

court lacks subject-matter jurisdiction, including claims for which the parties lack standing. See
Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009); Perry v. Vill. of
Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999). In ruling on a Rule 12(b)(1) motion, the
Court must accept as true all well-pleaded facts and may look beyond the jurisdictional
allegations to evidence submitted on the issue of subject-matter jurisdiction. St. John’s United
1

In its reply brief, DePaul insists that it “has not yet moved to dismiss Plaintiff’s Complaint
pursuant to Rule 12(b)(1).” Reply at 1 n.1, ECF No. 22. But the Court has “an independent duty to
ensure subject-matter jurisdiction,” even where the parties have not addressed it. Dexia Crédit Local v.
Rogan, 602 F.3d 879, 883 (7th Cir. 2010). In any event, DePaul’s opening brief does, in fact, raise the
issue of standing. See Def.’s Mem. Supp. Mot. Dismiss 4, ECF No. 17 (“Plaintiff’s allegations . . . fail
for Plaintiff’s lack of standing.”); id. at 1 n.1 (“It is possible that Plaintiff’s TCPA claim also lacks
standing, and therefore should be dismissed pursuant to Rule 12(b)(1).”).

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Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007). The Court must also draw
all reasonable inferences in the plaintiff’s favor. Id.
“[I]f the litigants do not have standing, the Court is without authority to consider the
merits of the action.” Swan, 956 F. Supp. 2d at 918 (citing Warth v. Seldin, 422 U.S. 490, 498
(1975); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). In a TCPA case, a
plaintiff must have both Article III standing and statutory standing to bring his claims. See
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (holding that a plaintiff must satisfy Article
III standing requirements separately from the requirement of statutory standing); D.G. ex rel.
Tang v. William W. Siegel & Assocs., Attorneys at Law, LLC, 791 F. Supp. 2d 622, 625 (N.D. Ill.
2015) (distinguishing the issue of statutory standing in TCPA case from the issue of Article III
standing).
Article III standing requires the plaintiff to show a “personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 678 (2016) (quoting Allen v. Wright, 468 U.S.
737, 751 (1984)). Article III “injury-in-fact” is a concrete and particularized, actual or imminent
invasion of a legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
In ruling on a motion to dismiss for lack of standing, the court will not presume an injury to be
too minor, because “[s]uch a presumption would be inconsistent with the court’s duty to draw
reasonable inferences of fact” in the plaintiff’s favor. Centerline Equip. Corp. v. Banner Pers.
Serv., Inc., 545 F. Supp. 2d 768, 779 (N.D. Ill. 2008).
In turn, a plaintiff has statutory standing where his “interests fall within the zone of
interests protected by the law invoked.” Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296,
1302 (2017) (internal quotation marks omitted); accord United States v. All Funds on Deposit

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with R.J. O’Brien & Assocs., 783 F.3d 607, 617 (7th Cir. 2015). In other words, the text of the
statute from which the plaintiff’s claim arises must indicate that “Congress has accorded this
injured plaintiff the right to sue the defendant to redress his injury.” D.G. ex rel. Tang, 791 F.
Supp. 2d at 624 (quoting Graden v. Conexant Sys. Inc., 496 F.3d 291, 295 (3d Cir. 2007)).
First, Franklin has Article III standing to bring this case. He alleges that DePaul sent him
unwanted text messages in a manner that violated his right of privacy. Compl. ¶¶ 12, 20, 24.
Such alleged injury falls squarely within the body of cases where courts have found sufficient
injury to meet the injury requirement to bring a TCPA claim. See Dolemba v. Ill. Farmers Ins.
Co., 213 F. Supp. 3d 988, 993 (N.D. Ill. 2016); Aranda v. Caribbean Cruise Line, Inc., 202 F.
Supp. 3d 850, 854–57 (N.D. Ill. 2016); Martin v. Leading Edge Recovery Sols., LLC, No. 11 C
5886, 2012 WL 3292838, at *2–4 (N.D. Ill. 2012); see also Caudill v. Wells Fargo Home Mortg.,
Inc., No. 5:16–066–DCR, 2016 WL 3820195, at *2 (E.D. Ky. 2016) (holding that plaintiff had
standing to bring TCPA claim and noting that “[plaintiff’s] alleged harms, such as invasion of
privacy, have traditionally been regarded as providing a basis for a lawsuit in the United States”);
Mey v. Got Warranty, Inc., 193 F. Supp. 3d 641, 644–45 (N.D.W. Va. 2016) (noting that
unwanted calls in violation of the TCPA may cause monetary injury by causing the consumer to
incur charges for calls and electricity costs to recharge the phone). Furthermore, the alleged
violation of Franklin’s privacy is traceable to DePaul’s text messages, and if he prevails,
Franklin’s injury may be redressed by recovery of statutory damages.
DePaul suggests that there may now be a more stringent standard to show injury-in-fact
to establish Article III standing following the Supreme Court’s decision in Spokeo, Inc. v.
Robbins, 136 S. Ct. 1540 (2016). See Def.’s Mem. Supp. at 1 n.1; Reply at 1 n.1. In Spokeo, the
Court held that to establish Article III standing, in addition to a “particularized” injury, the

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plaintiff must have a “concrete” injury, or a “de facto” or “real” injury that “actually exist[s].”
Spokeo, 136 S. Ct. at 1548. Although the contours of Spokeo are still being flushed out, courts
post-Spokeo have continued to find Article III standing in cases alleging violations of the TCPA
where the defendant placed unsolicited calls to a consumer’s cell phone. See, e.g., Dolemba, 213
F. Supp. 3d at 992–94; Aranda, 202 F. Supp. 3d at 853–59 (“[B]oth history and the judgment of
Congress suggest that violation of [the TCPA] is sufficient to constitute a concrete, de facto
injury.”); Mey, 193 F. Supp. 3d at 644–50. Accordingly, even post-Spokeo, the Court concludes
that Franklin has Article III standing to bring this suit.
Additionally, the face of Franklin’s complaint shows that he has statutory standing. The
TCPA states that it is unlawful “to make 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). The TCPA also grants the called party the
right to sue any person violating this provision. Id. § 227(b)(3). Franklin alleges that DePaul
violated the TCPA by placing multiple “calls” 2 to him in the form of text messages using an
automatic telephone dialing system. Compl. ¶¶ 20, 24.
Comparing the text of the TCPA with Franklin’s allegations, the Court finds that Franklin
states sufficient facts to show that his interests fall within the zone of interests protected by the
TCPA, and he accordingly has statutory standing to assert a TCPA claim. See D.G. ex rel. Tang,
791 F. Supp. 2d at 625 (holding that plaintiff had statutory standing to bring TCPA claim where
he allegedly received unsolicited calls to his personal phone from defendant). For all of the
above reasons, Franklin has both constitutional and statutory standing to bring this case.
2

The parties do not dispute that a text message to a cell phone qualifies as a “call” within the scope
of 47 U.S.C. § 227(b)(1)(A)(iii). Cf. Campbell-Ewald, 136 S. Ct. at 667 (discussing TCPA claim in
connection with unsolicited text messages).

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II.

Rule 12(b)(6)
A motion under Rule 12(b)(6) challenges the sufficiency of the plaintiff’s complaint.

Christensen v. Cty. of Boone, 483 F.3d 454, 457 (7th Cir. 2007). The federal notice pleading
standard requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2009)). A complaint must provide only
“enough detail to give the defendant fair notice of what the claim is and the grounds upon which
it rests, and, through his allegations, show that it is plausible, rather than merely speculative, that
he is entitled to relief.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (quoting
Lang v. TCF Nat’l Bank, 249 F. App’x 464, 466 (7th Cir. 2007)). A pro se complaint, “however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers” and “is to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted).
In evaluating a motion to dismiss, all well-pleaded allegations in the complaint are
accepted as true, and courts must draw all reasonable inferences in the plaintiff’s favor. Cole v.
Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011); Justice v. Town of Cicero,
577 F.3d 768, 771 (7th Cir. 2009). When ruling on a Rule 12(b)(6) motion to dismiss, a court
can take judicial notice of matters of public record without converting the motion into a motion
for summary judgment. See Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074,
1080–81 (7th Cir. 1997). Additionally, a complaint’s factual allegations may be supplemented
by “documents that are attached to the complaint,” as well as “documents that are central to the
complaint and are referred to in it.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013);
see Fed. R. Civ. P. 10(c); Geinosky v. City of Chi., 675 F.3d 743, 745 n.1 (7th Cir. 2012).

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In moving to dismiss the complaint, DePaul argues that Franklin’s allegations fail to state
a claim because he gave prior express consent to receive the text messages in question. Under
the TCPA, a defendant may avoid liability by proving that it made a call with the prior express
consent of the called party. Toney v. Quality Res., Inc., 75 F. Supp. 3d 727, 734 (N.D. Ill. 2014)
(citing 47 U.S.C. § 227(b)(1)(A)(iii)). “Express consent is an affirmative defense on which the
defendant bears the burden of proof.” Blow v. Bijora, Inc., 855 F.3d 793, 803 (7th Cir. 2017).
While complaints need not anticipate affirmative defenses, Levin v. Miller, 763 F.3d 667, 671
(7th Cir. 2014), “a court may dismiss a suit on the basis of a valid affirmative defense that is
obvious from the face of the complaint.” Toney, 75 F. Supp. 3d at 734 (citing Syler v. Will Cty.,
564 F. App’x 848, 849 (7th Cir. 2014)). Granting a motion to dismiss on the basis of an
affirmative defense is appropriate only where a plaintiff has pleaded all elements of the
affirmative defense in the complaint. Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F. Supp. 2d
898, 905 (N.D. Ill. 2012) (citing United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)).
First, DePaul asks the Court to dismiss the complaint because it sent Franklin the initial
text message with his prior express consent. Def.’s Mem. Supp. at 5–6. According to DePaul, it
is clear from the fact that the initial text message read “Thanks for Opting In!” that “[Franklin’s]
phone number was ‘opted in’ to receiving text messages from DePaul.” Reply at 2. But
Franklin explicitly states in his complaint that he “has never provided his cellular phone number
to the Defendant or given his prior express consent to be called.” Compl. ¶ 25. Because this
allegation must be accepted as true, Cole, 634 F.3d at 903, Franklin’s allegations are sufficient to
survive a motion to dismiss.
DePaul nevertheless asks the Court to ignore Franklin’s allegation that he never gave
prior express consent, arguing that this allegation is a legal conclusion that “cannot withstand a

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motion to dismiss.” Def.’s Mem. Supp. at 8. 3 As noted above, however, prior express consent is
an affirmative defense, and Franklin need not anticipate or attempt to plead around affirmative
defenses. Levin, 763 F.3d at 671. Moreover, this assertion is not, in fact, merely a legal
conclusion, because Franklin supports it with additional factual allegations, stating that he “has
never provided his cellular phone number to the Defendant.” Compl. ¶ 25. Construing the
complaint liberally and drawing inferences in Franklin’s favor, the Court must credit Franklin’s
claim that he did not consent to receiving DePaul’s texts at this preliminary stage.
Undeterred, DePaul seeks to bolster its argument by including an exhibit of an online
form from its website, as well as an exhibit of what seems to be a series of back-end system
screenshots, neither of which is attached to Franklin’s complaint. Def.’s Mem. Supp., Exs. A–B.
But these exhibits are not central to Franklin’s claim, and the Court declines to consider them in
ruling on this motion. Franklin is correct in his brief, stating that he has “not referred to Exhibit
A or B” and has “never seen these forms [and does] not know where they come from.” Pl.’s
Mem. Opp. 6 n.1, ECF No. 20.
Nor will the Court take judicial notice of these exhibits. Courts in this district have
rejected invitations to take judicial notice of exhibits such as website printouts, except where the
party offering the materials shows that they are “matters of public record” or “come from sources
whose accuracy cannot reasonably be questioned.” Hill v. Capital One Bank (USA), N.A., No.
14-CV-6236, 2015 WL 468878, at *5 (N.D. Ill. 2015) (internal quotation marks omitted)
(collecting cases). By contrast, DePaul’s exhibits appear to consist of screenshots of some

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Relatedly, DePaul argues it is not plausible that it would have contacted Franklin if he had not
provided his number on DePaul’s website. Def.’s Mem. Supp. at 8. However, there are several plausible
alternative ways in which Franklin may have received the automated texts. For example, a third party
may have opted in using Franklin’s phone number without his knowledge, or DePaul may have
mistakenly sent the message to Franklin due to a systematic error. It will be the task of the parties to nail
this down during discovery.

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unspecified computer program or Internet site whose accuracy has not been verified, and it is
difficult to even determine the source of Exhibit B. Because the exhibits are not sources whose
accuracy “cannot be reasonably questioned,” the Court will not take judicial notice of their
content. Cf. Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648 (7th Cir. 2011). 4
Last, DePaul argues that Franklin’s failure to opt out of subsequent text messages after
receiving the first message shows continual express consent to receive the subsequent messages. 5
Specifically, DePaul claims that Franklin failed to use a reasonable means available to opt out by
replying with the word “Out” instead of with the keyword “OUTDP” as instructed. Def.’s Mem.
Supp. at 7. Again, this is an issue of fact that the Court cannot consider at this stage of the
litigation. Drawing reasonable inferences in Franklin’s favor, it is hardly clear from the face of
the complaint that he intended to give his express consent to receive further text messages by
texting “Out,” instead of “OUTDP.” In fact, texting “Out” may just as well support Franklin’s
opposing assertion that he intended to opt out of DePaul’s text messages. More importantly,
even assuming arguendo that Franklin consented to receive these subsequent text messages, he is
entitled to proceed with his TCPA claim because he alleges that he never expressly consented to
the initial text message. In other words, even if Franklin could be found to have consented to the

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DePaul references Bassiouni v. C.I.A., No. 02 C 4049, 2004 WL 1125919 (N.D. Ill. Mar. 31,
2004), as an example of where a court took judicial notice of its website. Def.’s Mem. Supp. at 2 n.2
(citing Bassiouni, 2004 WL 1125919, at *1). Not only was Bassiouni a case at the summary judgment
stage and thus distinguishable from the present case, the cited material in Bassiouni simply referenced
undisputed public information regarding a party’s professional biography. The Court is therefore
unpersuaded by DePaul’s reliance on Bassiouni.

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In addition, DePaul argues that Franklin failed to plead that any of the subsequent messages after
the initial message were even from DePaul, and that such texts “appear to have been completely unrelated
to DePaul or its originally-intended communication.” Reply at 5. Franklin, however, specifically pleads
in his complaint that “Defendant contacted [him] at least seventeen (17) times by means of automatic text
messaging to a cellphone.” Compl. ¶ 24; see also id. ¶ 22 (alleging that DePaul’s automated system sent
a text message to Franklin’s phone).

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subsequent messages by failing to text the precise keyword “OUTDP,” he would still be entitled
to proceed with his TCPA claim based on his receipt of the initial text.
In sum, Franklin has adequately alleged a cause of action for DePaul’s violation of the
TCPA. Contrary to DePaul’s contention, Franklin has not pleaded himself out of court or
alleged that he expressly consented to receive text messages from DePaul. The complaint is thus
sufficient to survive DePaul’s motion to dismiss.
Conclusion
For the reasons stated herein, DePaul’s motion to dismiss the complaint under Rule
12(b)(6) [16] is denied.

IT IS SO ORDERED.

ENTERED 7/28/17

__________________________________
John Z. Lee
United States District Judge

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