JOHN D. ALLEMAN, individually and on behalf of all others similarly situated, Plaintiff,
YELLOWBOOK, YELLOWBOOK, INC., and YP TEL, INC., Defendants.
MEMORANDUM and ORDER
DAVID R. HERNDON, CHIEF JUDGE
Now before the Court is defendants Yellowbook Inc. and YPTel, Inc. (defendants’) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 14). Plaintiff John D. Alleman (plaintiff) obviously opposes defendants’ motion (Doc. 20). As the Court finds defendants’ arguments for dismissal persuasive, the Court GRANTS their motion.
II. Background and Allegations
Plaintiff initially filed his class action complaint, alleging defendants placed unsolicited telephone calls to him in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., in Williamson County, Illinois (Doc. 2-1). Defendants removed plaintiff’s amended complaint to this Court on December 27, 2012 (Doc. 2). Plaintiff’s amended allegations state that on November 9, 2010, November 15, 2011, and November 22, 2011, defendants “used a telephone machine, computer, automatic dialing device, or other device” to send the following unsolicited, pre-recorded phone message to plaintiff’s personal residence (a “transcript” of which is attached to plaintiff’s amended complaint as Exhibit A):
Hi this is Yellowbook calling to verify that you received your Yellowbook phone directory. If you have not received the new directory or you’d like to request additional books, please contact Yellowbook at 1-888-492-8721 to speak to one of our customer service representatives- again that number is 1-888-492-8721. Thank you for your time. Good bye.
(Doc. 2-2). Plaintiff alleges defendants’ prerecorded, unsolicited call was part of a “marketing program” aimed at “potential customers, ” in violation of the TCPA (See Doc. 2-1).
Defendants move to dismiss plaintiff’s amended complaint. Defendants argue dismissal is warranted as the message is exempted from the TCPA’s coverage for two separate reasons. First, the message is not a commercial message. Second, assuming arguendo that the message is commercial in nature, it does not contain an unsolicited advertisement. Thus, the message is exempted from the TCPA’s coverage and plaintiff has failed to state a claim upon which the Court may grant relief (Doc. 14). Of course, plaintiff disagrees (Doc. 20).
III. Legal Standard
A Rule 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which a court can grant relief. Hallinan v. Fraternal Order of Police Chicago Lodge 7, 570 F.3d 811, 820 (7th Cir. 2009). Documents attached to the complaint are considered part of the complaint for all purposes. See Fed. R. Civ. P. 10(c).
The Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that Rule 12(b)(6) dismissal is warranted if the complaint fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Even though Twombly (and Ashcroft v. Iqbal, 556 U.S. 662 (2009)) retooled federal pleading standards, notice pleading remains all that is required in a complaint. “A plaintiff still 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) (citation omitted).
The Seventh Circuit has offered further direction on what (post- Twombly & Iqbal ) a complaint must do to withstand dismissal for failure to state a claim. In Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008), the Court reiterated: “surviving a Rule 12(b)(6) motion requires more than labels and conclusions;” the allegations must “raise a right to relief above the speculative level.” Similarly, the Court remarked in Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010): “It is by now well established that a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law.” In making this assessment, the district court accepts as true all well-pled factual allegations and draws all reasonable inferences in the plaintiff's favor. See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). With these principles in mind, the Court turns to plaintiff’s amended complaint.
IV. Arguments and Analysis
1. Defendants’ Messages are not Subject to the ...