Yates v. Checkers Drive-in Restaurants, Inc. et al
Filing
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MEMORANDUM Opinion and Order: For the foregoing reasons, the defendants' motions to dismiss 24 , 29 are denied. The plaintiff is ordered to provide a more definite statement alleging the approximate date, time, and content of each text message that is the subject of this case. Signed by the Honorable Sharon Johnson Coleman on 6/25/2018. Mailed notice. (ym, )
Case: 1:17-cv-09219 Document #: 50 Filed: 06/25/18 Page 1 of 5 PageID #:283
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MADELEINE YATES, on behalf of herself
and other persons similarly situated,
Plaintiff,
v.
CHECKERS DRIVE-IN RESTAURANTS,
INC. and VIBES MEDIA, LLC,
Defendants.
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) Case No. 17-cv-9219
)
) Judge Sharon Johnson Coleman
)
)
)
)
)
)
MEMORANDUM OPINION AND ORDER
The plaintiff, Madeleine Yates, brings this action against Checkers Drive-In Restaurants, Inc.
and Vibes Media, LLC, alleging that the defendants violated the Telephone Consumer Protection
Act by repeatedly sending her commercial advertisements via text message. The defendants now
move to dismiss Yates’ complaint for failure to state a claim or, alternatively, for lack of standing.
For the reasons set forth herein, the defendants’ motions are denied, but the plaintiff is ordered to
provide a more definite statement of her claims.
Background
The following allegations are from the plaintiff’s complaint and are taken as true for the
purpose of the present motion. Yates texted “Burger” to 88001 in an attempt to obtain a coupon
for a free “Big Buford” cheeseburger. The complaint does not indicate specifically why Yates
believed that such a text would get her such a coupon or what terms she believed would govern
such an arrangement, although it does generally allege that Checkers ran promotions in which
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patrons could text certain messages to that telephone number in order to obtain promotional
discounts.
Yates subsequently received a text message reading something along the lines of “REPLY
with Y to get your free [promoted product] coupon & other deals from Checkers/Rally's at this #.
No purchase necessary to join.” Yates does not disclose how she replied to this message, but
instead asserts that she subsequently received more than ten auto-dialed text message
advertisements, and that only one of those messages included instructions on how to opt out of
receiving future messages.
Legal Standard
A motion brought pursuant to Federal Rule of Civil Procedure 12(b)(1) raises the
fundamental question of whether a federal district court has subject-matter jurisdiction over the
action before it. Fed. R. Civ. P. 12(b)(1); see, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–
95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “The burden of proof on a 12(b)(1) issue is on the
party asserting jurisdiction.” United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.
2003), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint, not the merits of the allegations. The allegations must contain
sufficient factual material to raise a plausible right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although Rule 8 does not require a plaintiff
to plead particularized facts, the complaint must assert factual “allegations that raise a right to relief
above the speculative level.” Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011). When ruling
on a motion to dismiss, the Court must accept all well-pleaded factual allegations in the complaint as
true and draw all reasonable inferences in the plaintiff’s favor. Boucher v. Fin. Sys. of Green Bay, Inc.,
880 F.3d 362, 365 (7th Cir. 2018).
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Discussion
The defendants contend that Yates has failed to state a claim on which relief may be granted.
As an initial matter, the Court notes that Checkers has attached two exhibits to its memorandum in
support of its motion to dismiss. The first exhibit appears to be an advertisement, of unknown
origin, reading “*TEXT BUFORD TO 88001 TO GET A FREE BIG BUFORD WITH ANY
PURCHASE.” The advertisement contains fine print at the bottom, which is subsequently blown
up on the next page of the exhibit. The second exhibit appears to be a text message chain between
88001 and an unknown cellphone in which the unknown cellphone owner receives a text reading
“REPLY with Y to get your FREE Big Buford coupon & other deals from Checkers/Rally's at this
#. No purchase necessary to join.” The unknown cellphone holder replies with “Y”, and then
receives a message reading “You're a BOSS! You scored a FREE big Buford from Checkers/Rally's.
Tap to view & redeem your offer: http://vbs.cm/P2AO18. Txt STOP2stop.” The defendants
assert that the first exhibit is the ad that Yates responded to and that the second exhibit is
representative of the text message chain with Yates. There is nothing before this Court, however, to
establish that is the case or to confirm the accuracy and relevance of these exhibits. The Court
accordingly declines to give them any consideration. Franklin v. Depaul Univ., No. 16 C 8612,
2017 WL 3219253, at *5 (July 28, 2017) (Lee, J.).
The defendants contend that Yates has failed to allege the basic elements necessary to state a
claim for violation of the TCPA. The defendants assert that Yates must allege, among other things,
the phone number at issue, the number of text messages received, and the date and content of those
messages. The Court does not believe that quite this level of detail is necessary, although it does
agree that Yates’ specific factual allegations are minimal. See Hanley v. Green Tree Servicing, LLC, 934
F. Supp. 2d 977, 982–83 (N.D. Ill. 2013) (Castillo, J.) (recognizing that a TCPA plaintiff must allege
that the number called was a cellular telephone, but not requiring that a plaintiff allege the specific
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number at issue). Here, Yates has alleged at least one communication—the initial text message from
the defendants—with specificity as to its content. Yates, moreover, has asserted that she
subsequently received more than ten auto-dialed text messages that were written in an impersonal
manner and were not addressed to her by name. Although the latter allegations might themselves be
inadequate, Yates’ specificity as to the first message received provides sufficient detail for her
complaint to scrape past the pleading requirements, given that the allegations fail to establish that
Yates provided consent to receive that specific message or any subsequent messages.1 Nevertheless,
the Court believes that greater specificity would be beneficial with respect to the subsequent text
messages that Yates received. Accordingly, the Court orders that Yates amend her complaint to
provide a more definite statement as to the approximate date, time, and content of each text
message that she contends violated the TCPA. See In re S.M. Acquisition Co., No. 05 C 7076, 2006
WL 2290990, at *3 (N.D. Ill. Aug. 7, 2006) (Aspen, J.) (recognizing that judges have the discretion to
order parties to provide more definite statements sua sponte).
Beyond their arguments regarding the adequacy of the pleadings, the defendants also
contend that the plaintiffs’ claims fail as a matter of law because the allegations make clear that Yates
provided prior express written consent to receive the texts in issue. The allegations in the
complaint, however, do not suggest that Yates ever consented to receive text messages from
Checkers. Instead, it is the defendants own exhibits, which, as previously discussed, this Court does
not consider, that suggest that this may have been the case. The allegations do not clearly indicate
why Yates believed that texting “BRGER” to 88001 would have the effect of providing her a
coupon for a free Big Buford cheeseburger, but there is nothing before this Court to suggest that
Yates did so based on a particular advertisement or that by doing so Yates was agreeing to any
1 The Court notes that the defendants’ assertion that Yates has not adequately alleged her claims is squarely at odds with
the defendants’ submission of the purported advertisement at issue and a representative text message chain, both of
which suggest that the defendants had ample notice of the substance of Yates’ claims.
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particular terms or conditions. The allegations similarly fail to indicate that, upon receiving a text
message inviting Yates to reply with “Y” to get a free Big Burford coupon and other deals, Yates
actually texted “Y” and gave consent to receive future messages. The defendants’ affirmative
defense is therefore not ripe for resolution at this stage of the case. Xechem, Inc. v. Bristol-Myers Squibb
Co., 372 F.3d 899, 901 (7th Cir. 2004).
Finally, the defendants’ contend that Yates lacks Article III standing to pursue this case in
light of the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1543, 194 L.Ed.2d 635
(2016). In Spokeo, the Supreme Court ruled that a plaintiff must allege a “concrete” or “real” injury
to establish standing and that the mere assertion of statutory damages did not suffice. Id. Spokeo,
however, does not deprive the Court of Article III standing because violation of the TCPA causes
the concrete, de facto injuries that the plaintiff has alleged in the complaint. Aranda v. Caribbean
Cruise Line, Inc., 202 F. Supp. 3d 850, 854–57 (N.D. Ill. 2016) (Kennelly, J.). The defendants also
assert that Yates cannot establish injury because she requested the text messages in question. As
previously set forth, the defendants cannot establish the truth of this proposition at this juncture in
light of the allegations before this Court.
Conclusion
For the foregoing reasons, the defendants’ motions to dismiss [24, 29] are denied. The
plaintiff is ordered to provide a more definite statement alleging the approximate date, time, and
content of each text message that is the subject of this case.
IT IS SO ORDERED.
Date: 6/25/2018
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Court Judge
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