The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant National Enterprise Systems, Inc.'s (NES) partial motion to dismiss. For the reasons stated below, the partial motion to dismiss is denied.
Plaintiff Christina Torres (Torres) alleges that NES is a debt collection company. Torres claims that she received "numerous calls" (Phone Calls) sometime within the last four years from NES on her cellular telephone that delivered a pre-recorded message to Torres' voicemail. (A Compl. Par. 13). Torres contends that the Phone Calls were made by NES using an automatic telephone dialing system in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq.
Torres also alleges that in January 2012, NES telephoned her and indicated that it was attempting to collect a past due amount on Torres' husband's student loan. Torres allegedly orally agreed to make a final one-time payment of $400.00 to resolve the outstanding debt, and Torres apparently gave NES some type of authorization to make a withdrawal from her bank account. NES subsequently sent Torres a letter indicating that $400.00 would be withdrawn from Torres' bank account and that NES would withdraw an additional payment of $2,295.53. Torres claims that even though she called NES and indicated that she did not authorize the $2,295.53 withdrawal, NES proceeded with the withdrawal, causing Torres' bank account to become overdrawn. Torres contends that the alleged unauthorized withdrawal violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Torres includes in her amended complaint a TCPA claim (Count I), and a FDCPA claim (Count II). NES has filed an answer to the FDCPA claim and moves to dismiss the TCPA claim.
Federal Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1))requires a court to dismiss an action when it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1); see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that when reviewing a motion to dismiss brought under Rule 12(b)(1), the court "must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff"). When subject matter jurisdiction is not apparent on the face of the complaint and is contested, "'the district court may properly look beyond the jurisdictional allegations of the complaint . . . to determine whether in fact subject matter jurisdiction exists." Sapperstein v. Hager, 188 F.3d 852, 855-56 (7th Cir. 1999)(internal quotations omitted)(quoting United Transportation Union v. Gateway Western Railway Co., 78 F.3d 1208, 1210 (7th Cir. 1996)). The burden of proof in regards to a Rule 12(b)(1)motion is on the party asserting that the court has subject matter jurisdiction. Id.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court."
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that "[t]o survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," and that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged")(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).
NES argues that the TCPA claim should be dismissed for lack of subject matter jurisdiction and should be dismissed in the alternative based upon a failure to state a valid claim for relief.
I. Subject Matter Jurisdiction
NES argues that this court lacks subject matter jurisdiction over the TCPA claim based upon NES's contention that Torres lacks standing to bring a TCPA claim. Article III of the federal Constitution authorizes "federal courts to adjudicat[e] actual 'Cases' or 'Controversies.'" Booker-El v. Superintendent, Indiana State Prison, 668 F.3d 896, 899 (7th Cir. 2012)(quoting in part U.S. Const. art. III, § 2, cl. 1). In order to establish Article III standing, a plaintiff must establish: "(1) an injury in-fact; (2) fairly traceable to the defendant's action; and (3) capable of being redressed by a favorable decision from the court." Id. (quoting Parvati Corp. v. City of Oak Forest, Ill., 630 F.3d 512, 516 (7th Cir. 2010)). NES argues that Torres has not alleged facts that indicate that she suffered an injury in-fact from the Phone Calls. NES asserts that Torres does not allege that she suffered any specific monetary or physical damages from the Phone Calls. Torres indicates in her amended complaint that the messages from the Phone Calls used up Torres' cellular phone minutes, which were limited. (A Compl. Par. 20-21). A monetary value could be assessed based on the amount Torres paid for cellular services. Thus, Torres' allegations suggest a monetary harm to Torres. NES argues that there are no facts in the amended complaint as to whether Torres ultimately exceeded her allotted cellular minutes or needed to pay for additional minutes. It is true that a "plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court." McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998). However, an evidentiary analysis regarding issues such as whether Torres used up all her cellular minutes or whether the minutes used by NES's message would have been otherwise used for other purposes by Torres is premature at this juncture.
In addition, even aside from the potential monetary losses, Torres alleges that the Phone Calls were a nuisance and that they invaded her privacy. Article III standing can be premised upon such non-monetary and non-physical injuries. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992)(stating that "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing"); Petit v. City of Chicago, 31 F.Supp.2d 604, 612 (N.D. Ill. 1998)(indicating an "emotional injury" can be sufficient for Article III standing). The harm alleged by Torres is not some type of abstract and hypothetical injury. Torres clearly indicates that the unsolicited phone messages on her cell phone are directly connected to the alleged concrete nuisance to her and the invasion of her privacy. See Allen v. Wright, 468 U.S. 737, 751 (1984)(stating that the injury must be "fairly traceable to the defendant's allegedly unlawful conduct"); City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (stating that "[a]bstract injury is not enough"). Causing a nuisance to Torres and invading her privacy would be an injury to Torres. While NES may dispute whether it in fact engaged in such conduct and dispute whether the harm ...