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Norman v. Northern Illinois Gas Co.

United States District Court, Seventh Circuit

January 16, 2014

RICHELLE K. NORMAN, Plaintiff,
v.
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[1], pro se, filed a two-count Third Amended Complaint 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(c), and the Illinois Eavesdropping Act, 720 Ill. Comp. Stat. Ann. 5/14-1. Nicor moves to dismiss the Third Amended Complaint [39] for failure to state a claim and for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, this Court grants the motion and dismisses the case with prejudice.

Requests to Admit

On January 16, 2014, Nicor filed a motion to deem admitted requests for admissions and for leave to supplement motion to dismiss [73]. Nicor asserts that it has been more than 30 days since it served the requests for admission and Norman has neither respond or moved for additional time to respond to the requests. Accordingly, Nicor moves this Court to deem the statements admitted by operation of Federal Rule of Civil Procedure 36(a)(3). The Court grants Nicor's motion.

Background

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.

Norman alleges that she received the first call in July 2012, in which a Nicor representative asked to speak with Keisha Moore. After Norman informed the representative that they had the wrong number and no Keisha Moore could be reached at Norman's residential telephone number, the representative hung up the telephone. (Third Amended Complaint, Dkt. 38 at ¶ 26). Norman alleges that the calls for Keisha Moore continued, including fifteen calls after Norman placed her telephone number on the national "Do Not Call" Registry.

On January 22, 2013, Norman's daughter answered the telephone and a recorded message stated, "Please stay on the line." The recording continued, stating, "You may be qualified for rebate incentives for purchasing and installing furnaces, boilers, and water heaters with warranties provided with each purchase, for more information call and ask about our efficiency program." Following the recording, a Nicor representative came on the line and asked for "Keisha Moore." When the representative was informed that no Keisha Moore resided there, he said thank you and hung up. (Dkt. 38 at ¶ 31).

On April 10, 2013, Wayne Norman answered the telephone and the same recording was played as during the January 22, 2013, call. A Nicor representative came on the line and asked for Keisha Moore. Mr. Norman informed the representative that Keisha Moore does not live there and that they had requested the telephone number be removed from the database. The representative apologized and assured Mr. Norman that the number would be removed. (Dkt. 38 at ¶ 32).

Richelle Norman filed the instant cause of action on May 19, 2013, Nicor moved to dismiss the complaint, and in response Norman filed a First Amended Complaint. Nicor again moved to dismiss and before the Court could rule on the motion following briefing, Norman filed a Second Amended Complaint. This Court granted Nicor's motion to dismiss the First Amended Complaint and also ruled that the Second Amended Complaint failed to cure the defects in the First Amended Complaint. Norman then filed a Third Amended Complaint, adding Kaelin Pierce and Wayne Norman as plaintiffs and asserting a new claim under the Illinois Eavesdropping Act. Nicor again moved to dismiss the Third Amended Complaint in its entirety.

Legal Standard

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 ...


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