United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
Plaintiff, Linda Gonnella, filed a Complaint against Defendant, Delbert Services Corporation, alleging constitutional claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; the Telephone Consumer Practices Act ("TCPA"), 47 U.S.C. § 227; and state law claims under the Illinois Collection Agency Act ("ICAA"), 225 ILL. COMP. STAT. 435/1 et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILL. COMP. STAT. 505/1 et seq. Delbert moved to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6).
The following facts are drawn from Plaintiff's Complaint and are accepted as true for purposes of the Motion to Dismiss. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). Plaintiff lives in Chicago, Illinois. (Am. Compl. ¶ 4.) Delbert is a Nevada corporation with its principal place of business at 7125 Pollock Drive, Las Vegas, Nevada, 89119; is a debt collector, as defined by 15 U.S.C. § 1692(a)(6); and is licensed as a collection agency in Illinois pursuant to 225 ILL. COMP. STAT. 425/4. ( Id. at ¶¶ 5, 7, 8.) On May 27, 2014, Gonnella received a call from (909) 680-3391. ( Id. at ¶ 9.) The caller was a Delbert representative named Marvin. ( Id. ) The purpose of the call was to attempt collection of an alleged debt. ( Id. at ¶ 10.) During the call, Gonnella asked that calls from Delbert cease for sixty days. ( Id. at ¶ 11.)
On June 9, 2014, Delbert was sent a fax from Gonnella's counsel (Edelman, Combs, Latturner & Goodwin, LLC), stating, "Ladies/Gentlemen: Ms. Gonnella disputes your loan and refuses to pay it." ( Id. at ¶ 12; Exhibit 1.) Gonnella received twelve additional calls between June 11, 2014 and July 9, 2014. ( Id. at ¶¶ 13-26.) Some calls contained a prerecorded message, and some calls left no message. ( Id. ). When dialed back, the phone led to an automated message that said, "Thank you for calling Delbert Services." ( Id. at ¶ 27.) The automated message is identical for each phone number. ( Id. )
Federal Rules of Civil Procedure 12(b)(3)
Rule 12(b)(3) permits a defendant to move to dismiss a complaint for "improper venue."
Fed. R. Civ. P. 12(b)(3). A challenge to venue based upon a forum selection clause can appropriately be brought as a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(3).' Schwarz v. Sellers Markets, Inc., 812 F.Supp.2d 932, 941 (N.D. Ill. 2011) (quoting Muzumdar v. Wellness International Network, Ltd., 438 F.3d 759, 760 (7th Cir. 2006)). When considering a motion to dismiss under Rule 12(b)(3), the court construes all facts and draws all reasonable inferences in favor of the plaintiff. Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 806 (7th Cir. 2009). The plaintiff has the burden of showing venue is proper when a defendant challenges under Federal Rule of Civil Procedure 12(b)(3). Faur v. Sirius Int'l Ins. Corp., 391 F.Supp.2d 650, 657 (N.D. Ill. 2005).
Federal Rules of Civil Procedure 12(b)(6)
Rule 12(b)(6) permits 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). To survive a motion to dismiss, a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Rather, the complaint must provide a defendant "with fair notice' of the claim and its basis." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed.R.Civ.P. 8(a)(2) and Twombly, 550 U.S. at 555). When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts all well-pleaded factual allegations as true and construes all reasonable inferences in favor of the plaintiff. Tamayo, 526 F.3d at 1081.
Venue and Exhaustion
Because the venue issue is potentially dispositive, this issue will be considered first. Defendant argues that Plaintiff's Complaint should be dismissed because the forum-selection clause contained in the Plaintiff's Loan Agreement requires that this case be heard only in the Cheyenne River Sioux Tribal ("CRST") courts. Defendant also argues that the tribal exhaustion doctrine requires this Court to stay this case, pending the Plaintiff's exhaustion of her tribal remedies. Defendant admits that ...