The opinion of the court was delivered by: Judge Manning
For the reasons stated below, the court denies the defendant's motion to dismiss the plaintiff's claim under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA") (Count I).
For purposes of this Rule 12(b)(6) motion to dismiss, the court accepts all well-pled allegations as true. Plaintiff Ira Holtzman alleges, on behalf of himself and a putative class, that defendant Michael Caplice faxed an advertisement to Holtzman and 39 other recipients without permission. Count I alleges a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"); Count II alleges a state law claim for conversion; and Count III alleges a state law claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2.
The defendant filed a motion to dismiss all three counts. However, in the interim, the plaintiff filed a notice of voluntary dismissal of Counts II and III, see Dkt. #14-1. Accordingly, the motion to dismiss as to Counts II and III is stricken as moot and the court will address only the defendant's challenges to Count I, which is based on the TCPA. The court also notes that it allowed the government to intervene as of right in order to respond to the defendant's challenge to the constitutionality of the statute. As a result, the government filed a response to the motion to dismiss Count I, which the court has also considered in addressing the defendant's constitutional challenge.
A. Failure to Allege Sufficient Facts
The defendant first argues that the plaintiff fails to plead sufficient facts to satisfy the motion to dismiss standard set out in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)(citations omitted). In Bell Atlantic, the Supreme Court stated that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
The Seventh Circuit has interpreted Bell Atlantic as follows:
Rule 12(b)(6) permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. To state such a claim, the complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has interpreted that language to impose two easy-to-clear hurdles. First, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, --- U.S. ----, ----, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (alteration in Bell Atlantic ). Second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a "speculative level"; if they do not, the plaintiff pleads itself out of court. Bell Atlantic, 127 S.Ct. at 1965, 1973 n.14.
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). See also Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618-19 (7th Cir. 2007) (observing that the Supreme Court in Bell Atlantic "retooled federal pleading standards" such that a complaint must now contain "enough facts to state a claim to relief that is plausible on its face.").
Without applying the law to any particular count, the defendant generally argues that the plaintiff's allegations are conclusory and insufficient under Bell Atlantic. The plaintiff wholly fails to address this argument in his response, at least as it applies to the TCPA count, which is the only count left in the complaint. In any event, the court rejects the defendant's argument. The complaint alleges that the "TCPA prohibits the 'use of any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine . . . .' 47 U.S.C. § 227(b)(1)." Complaint at ¶ 20. It also alleges that the defendant sent an unsolicited fax to the plaintiff's fax machine without the plaintiff's permission and attaches a copy of the allegedly offending fax. Id. at ¶¶ 11, 12 and 24. Thus, the complaint gives the defendant fair notice of what the claim is and the grounds upon which it rests and the allegations plausibly suggest that the plaintiff has a right to relief under the TCPA.
B. Failure to Sufficiently Allege a Class Action
The defendant next contends that the plaintiff's class action allegations fail under the Bell Atlantic standard. Specifically, the defendant alleges that there is no factual basis for concluding that there are more than 40 individuals who allegedly received the same fax as plaintiff, particularly given that the allegations are made on information and belief. The defendant asserts that such allegations are inherently speculative, and therefore, cannot survive the motion to dismiss.
The court finds the defendant's attempt to dismiss class allegations under Rule 12(b)(6) for failure to meet the Twombly standard to be off point. The defendant is not arguing that these claims cannot as a matter of law proceed as a class action. Rather, the defendant argues that the allegations are insufficient to plausibly suggest that a sufficient number of class plaintiffs exists, which is simply another way of arguing that the plaintiff has failed to satisfy the numerosity requirement under Rule 23(a). As a matter of practicality, the court deems it most expeditious to decide this matter in the context of a class certification motion. As noted by a leading treatise on federal civil procedure:
Compliance with the Rule 23 prerequisites theoretically should not be tested by a motion to dismiss for failure to state a claim or by a summary judgment motion. The proper vehicle is Rule 23(c)(1)(A), which provides that, at an early practicable time, the court must "determine by order whether to certify the action as a class action." Therefore, a party wishing to challenge the validity of maintaining the ...