RICHELLE K. NORMAN, Plaintiff,
NORTHERN ILLINOIS GAS COMPANY d/b/a NICOR GAS COMPANY, INC., Defendant.
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Plaintiff Richelle K. Norman, pro se, filed a two-count First Amended Complaint on June 27, 2013, against defendant Northern Illinois Gas Company d/b/a Nicor Gas Company, Inc., ("Nicor"), alleging that Nicor called her telephone number after she placed it on the national do-not-call registry in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., and the Telemarketing and Consumer Fraud and Abuse Prevention Act, ("Telemarketing Act"), 15 U.S.C. § 6101, et seq. Nicor moves to dismiss the First Amended Complaint  for failure to state a claim and for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
Shortly after the parties finished briefing Nicor's motion to dismiss the First Amended Complaint, Norman filed a motion for leave to file a Second Amended Complaint . This Court took Norman's motion for leave to file a Second Amended Complaint under advisement without briefing to be considered in conjunction with the motion to dismiss the First Amended Complaint. For the reasons stated below, this Court grants Nicor's motion and dismisses the First Amended Complaint. This Court further finds that the proposed Second Amended Complaint fails to cure the defects contained in the First Amended Complaint.
Richelle Norman alleges that she received more than thirty telephone calls to her residential telephone number from Nicor between July 2012 and April 2013. On November 8, 2012, Norman placed her residential telephone number on the national "Do Not Call" list. Norman asserts that she never provided her telephone number to Nicor or gave written consent to be called.
Sometime in July 2012, Norman alleges that a representative of Nicor telephoned her and when she answered the phone, the person asked to speak with "Keisha Moore." Norman informed the caller that he had the wrong person and number, and told him to please stop calling her residential line. The caller asked Norman how long she had had the number in question, to which she responded that it was none of his business, but that the number does not belong to Keisha Moore. The caller then hung up.
Norman further alleges that she was called at least 20 more times after being notifying Nicor to stop calling. Norman also alleges that she was called at least 15 times after she placed her number on the "Do Not Call" list. Several of the calls left a recorded message stating, "Hello, this is an urgent message from Nicor Gas for Keisha Moore regarding the service at 832 Marengo Avenue, Forest Park, (inaudible Spanish)... if this is Keisha Moore, please press 1, if you need to place this call on hold in order to bring this person to the phone, please press 2, if you can take a message for this person, please press 3, if this is the wrong number to reach this party, press 4, ... (music)." (First Am. Compl., Dkt. 16, ¶ 29). Other calls from Nicor would simply say "Please stay on the line, " and Norman would hang up after answering the call.
On or about April 10, 2013, at approximately 9:46 a.m. Norman's husband answered the telephone. When he picked up, he heard a "clicking" noise and an automated message saying, "Please stay on the line, " followed by music in the background. While Norman's husband was on hold, a pre-recorded message talked about energy and warranty products offered by Nicor. ( Id. at ¶ 31). As her husband was about to hang up the telephone, a person came on the line asking to speak to "Keisha Moore." Norman's husband asked the caller for her name, which she said was "Karlin" from Nicor Gas. Norman told the rep that "Keisha Moore does not live here and that we have requested that this number be removed from their dialing system a long time ago." ( Id. ) The caller apologized and assured Norman that the number would be removed. The calls continued until Norman threatened legal action.
Norman alleges that she suffered emotional and psychological harm causing her to experience headaches, embarrassment, and humiliation as a result of the unsolicited calls.
The basic pleading requirement is set forth in Federal Rule of Civil Procedure 8(a)(2), which requires a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Although Rule 8 does not require a plaintiff to plead particularized facts, the factual allegations in the complaint must sufficiently raise a plausible right to relief above a speculative level. Arnett v. Webster, 658 F.3d 742, 751-52 (7th Cir. 2011). A pro se complaint is held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).
Rule 12(b)(6) allows a defendant to move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain sufficient factual allegations to state a claim of relief that is plausible on its face. Ashcroft, 556 U.S. 662, 678 (2009). When ruling on a motion to dismiss a court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a claim based on lack of subject matter jurisdiction, including lack of standing. See Retired Chicago Police Ass'n v. City of Chicago, 76 F.3d 856 (7th Cir. 1996). In order to survive dismissal for lack of subject matter jurisdiction, Norman must prove that she has standing to assert her claims. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)). To demonstrate standing, a plaintiff must show (1) an injury in fact that is concrete and particularized, actual or imminent, not conjectural or hypothetical; (2) this injury is fairly traceable to the defendant's conduct; and ...