Hollingsworth v. Jackson Hewitt Inc. et al

Filing 74

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 1/25/2017: For the reasons stated below, defendant's motion 64 to dismiss is denied. [see STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 1/25/2017. Mailed notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Phil Hollingsworth, et al.,
Plaintiff,
vs.
Jackson Hewitt Inc., et al.,
Defendant.

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Case No. 16 C 50059

Judge Philip G. Reinhard

ORDER
For the reasons stated below, defendant’s motion [64] to dismiss is denied.
STATEMENT-OPINION
This matter is before the court on the motion [64] of defendant, Jackson Hewitt, Inc., to
dismiss the first amended class action complaint [45] of plaintiff, Steve Yankee. Yankee’s
claim, for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.
(“TCPA”), is contained in Count II of that complaint. The court previously entered an order [63]
compelling arbitration and staying proceedings on the claims of Phil Hollingsworth contained in
Count I.
Yankee alleges defendant violated the TCPA by sending daily automated text messages
to his cellular phone. He alleges he “has been receiving daily automated text messages from
Jackson Hewitt.” The text messages each stated: “Daily Balance Alert: Current balance on your
JH Preferred Card is $0.00.” Despite texting “STOP” back to the sender, the messages
continued. Yankee never provided defendant with his cell phone number or gave his prior
express consent to message his cell phone number with automated text messages. Yankee is not
a customer of defendant and has not asked it to send him text messages. Yankee alleges the text
messages he received from defendant were fully automated and were part of defendant’s daily
automated account notification program. Each day, a program would compile a list of telephone
numbers that met preset criteria and then send those numbers the precrafted message concerning
the account balance. Although defendant acknowledged receipt of the “STOP” message by
texting back: “Your subscription to Jackson Hewitt messages has been canceled,” Yankee
continued to receive additional messages. Yankee alleges the text messages were sent from an
automated telephone dialing system (“ATDS”) as defined in the TCPA. Yankee’s cell phone
number was assigned to a cellular phone service for which Yankee incurs charges for incoming
messages.

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Defendant moves to dismiss for failure to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6). Defendant argues the complaint fails “to plead necessary facts to
support his allegations that an ATDS was used to send text messages to Plaintiff.”
The TCPA makes it 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 . . . to any telephone number assigned to a . . . cellular telephone
service . . . for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). The
term “automatic telephone dialing system” means “equipment which has the capacity – (A) to
store or produce telephone numbers to be called, using a random or sequential number generator;
and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).
To survive a 12(b)(6) motion to dismiss the “complaint must contain a ‘short and plain
statement of the claim showing that the pleader is entitled to relief.’ Fed. R. Civ .P. 8(a)(2). This
requirement is satisfied if the complaint (1) describes the claim in sufficient detail to give the
defendant fair notice of what the claim is and the grounds upon which it rests and (2) plausibly
suggests that the plaintiff has a right to relief above a speculative level.” Bravo v. Midland
Funding, LLC, 812 F.3d 599, 601-02 (7th Cir. 2016). “To meet this plausibility standard, the
complaint must supply enough fact to raise a reasonable expectation that discovery will reveal
evidence supporting the plaintiff’s allegations.” Independent Trust Corp. v. Stewart Information
Services Corp., 665 F.3d 930, 935 (7th Cir. 2012) (quotation marks and citation omitted).
Yankee easily meets the first prong set forth in Bravo. He alleges he has been receiving
daily text messages from defendant on his cellular phone notifying him that the balance due on
his JH Preferred Card is $0.00. He reproduces four of those text messages in the complaint. He
alleges the text messages were sent via an ATDS, and says he never gave his consent to
defendant texting him and, in fact, that defendant continued texting him even after he notified
defendant to stop. He alleges he is not a customer of defendant. These allegations give
defendant fair notice that plaintiff is claiming the text messages defendant has been sending him
on his cell phone concerning the balance due on a JH Preferred Card violate 47 U.S.C. §
227(b)(1)(A)(iii) because they were sent via an ATDS and he never gave his express consent to
have defendant send him such text messages. Defendant knows what Yankee is claiming and on
what he bases his claim.
The only issue is whether Yankee satisfies the second prong - does the complaint
plausibly suggest Yankee has a right to relief beyond the speculative level? Defendant argues
Yankee’s allegations that an ATDS was used do not rise above the speculative level. It contends
Yankee must plead more facts concerning his receipt of the text messages to allow the inference
they were sent via an ATDS.
“As other courts have recognized, the case law in this District is mixed as to the
requirements for pleading a TCPA claim, particularly with respect to use of an ATDS.” Izsak v.
Draftkings, Inc., No. 14-cv-07952, 2016 WL 3227299, *3 (N.D. Ill. Jun. 13, 2016) (Wood, J.)
(collecting cases). “Some cases have held, or at least suggested, that merely reciting the
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statutory definition of an ATDS is enough. Others have stated that more is required – that a
plaintiff must allege additional facts giving rise to a reasonable inference that an ATDS was
used.” Id. (citations omitted). “For, example, a plaintiff could describe the promotional content
or the generic, impersonal nature of the text message allegedly sent using an ATDS. A plaintiff
might also allege that identical messages were sent to many potential customers at the same
time.” Id. Even assuming the more stringent standard applies, Yankee has met the pleading
requirement.
Here, Yankee alleges he “has been receiving daily automated text messages.” The text
messages he reproduces are from June 14, 15, 16, and 17. The first amended complaint (which
added Yankee’s claim) was filed July 18. “Has been receiving daily automated text messages”
suggests the texts were continuing to be received on a daily basis at the time the complaint was
filed. Daily text messages each with the identical impersonal content received over the course of
a month allows the inference that an ATDS was used. Yankee’s allegations plausibly suggest he
has a right to relief above a speculative level. Bravo, 812 F.3d at 601-02. He has raised a
reasonable expectation that discovery will reveal evidence supporting his allegations.
Independent Trust Corp., 665 F.3d at 935.
For the foregoing reasons, defendant’s motion [64] to dismiss is denied.

Date: 1/25/2017

ENTER:

United States District Court Judge
Electronic Notices. (LC)

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