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Oliver v. Directv, LLC

United States District Court, N.D. Illinois, Eastern Division

April 13, 2015

KEVIN J. OLIVER and ERIC ROBERT TIPPETTS, individually and on behalf of all others similarly situated, Plaintiff,
DIRECTV, LLC, Defendant.


JAMES B. ZAGEL, District Judge.

Kevin J. Oliver and Eric Robert Tippetts ("Plaintiffs") filed this complaint against DirecTV, LLC ("Defendant") alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq. Defendant now moves to dismiss this case pursuant to Fed.R.Civ.P. 12(b)(6) and, alternatively, to strike paragraphs 70-72 pursuant to Fed.R.Civ.P. 12(f). For the following reasons, Defendant's motion to dismiss is denied in part and granted in part. Defendant's motion to strike is denied.

I. Factual Background

On August 2, August 28, September 4, and September 11, 2014, Oliver received a call from a number assigned to Defendant, "877-389-6582, " on his cellular telephone number, ending in "0434." On each of these occasions, Defendant contacted Plaintiff Oliver without first obtaining Oliver's prior express written consent. Oliver was not able to answer these calls, and Defendant did not leave a message. Defendant called Plaintiff on August 2 at 4:58 p.m., August 28 at 1:47 p.m., and September 4 at 12:00 p.m. After the September 4, 2014 call, Oliver called the number back with the intention of asking Defendant to stop calling, but was greeted by a pre-recorded automated voice identifying the answering party as DirecTV and inviting Oliver to leave a voicemail. Defendant once again called Plaintiff again on September 11, 2014 at 5:08 p.m. Again, Plaintiff was unable to answer the call, and Defendant did not leave a message. Based on the circumstances of these calls, Plaintiff alleged, on information and belief, that Defendant called Oliver from its pre-recorded automatic telephone dialing system ("ATDS"). Oliver had previously had a contract with DirecTV, but canceled his service in March 2014. At the time of the calls, Oliver did not have a business relationship with DirecTV or owe a balance to DirecTV. Oliver alleged, based on his research and understanding, that the purpose of Defendant's calls were to solicit business from Oliver, and that Defendant maintained a list of former customers that it periodically contacted to promote special rates for re-enrolling in one of Defendant's satellite television packages.

Between April 2013 and September 2014, Defendant contacted Tippetts on his cellular telephone number, ending in "5640, " approximately 25 times without first obtaining Tippetts' written consent. Tippetts did not consent to receiving calls on his cellular telephone from Defendant through an ATDS. On at least three occasions, Tippetts answered Defendant's call and heard a momentary pause before a live representative of Defendant would begin speaking. Tippetts was always routed to a different account manager who asked a series of questions related to Tippetts' prior cancellation of DirecTV service in April 2013 and tried to recruit Tippetts' back to DirecTV as a customer. Tippetts told Defendant's representative on each call that he was not interested in returning as a customer and that he did not want to receive any more calls from Defendant. At the time of the calls, Tippetts did not owe a balance or have a business relationship with Defendant, but Tippetts kept receiving calls from Defendant, each with an aggressive sales pitch. During Tippetts' last conversation with Defendant, Tippetts again told the representative that he did not want to be called again and asked the representative if the company kept notes of the previous calls to Tippetts. Defendant's representative admitted that its staff kept notes of previous calls and hung up on Tippetts. Based on the circumstances, Tippetts believed Defendant's call center was autodialing former customers' numbers at random, and that Defendant's ATDS called Tippetts on every occasion with the purpose of soliciting business from Tippetts. Tippetts, seeking a way to stop Defendant from calling, performed internet research and learned that many people had negative experiences with Defendant's telemarketing campaign.


A motion to dismiss under Fed.R.Civ.P. 12(b)(6) does not test the merits of a claim; rather it tests the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In deciding a § 12(b)(6) motion, the court accepts all well-pleaded facts as true, and draws all reasonable inferences in favor of the plaintiff. Id. at 1521. Fed.R.Civ.P. 8(a)(2) requires a plaintiff to provide "a short and plain statement of the claim showing that the pleader is entitled to relief, "such that the defendant is given "fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Notice pleading remains the standard under Rule 8, and heightened fact pleading is not required to state a claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Notice pleading requires that a complaint contain more than bare legal conclusions.

To survive a § 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678; McCauley v. City of Chicago, 671 F.3d 611, 615-619 (7th Cir. 2011). "A complaint should not be dismissed for failure to state [a] claim unless it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle the plaintiff to relief." Twombly, 550 U.S. at 546.


A. Motion to Dismiss Plaintiffs Oliver and Tippetts' claims

Defendant moves to dismiss Plaintiffs' complaint in its entirety for failure to sufficiently plead a violation of the TCPA. To state a cause of action under the TCPA, a plaintiff must allege that (1) a call was made; (2) the caller used an ATDS or artificial or prerecorded voice; (3) the telephone number called was assigned to a cellular telephone service; and (4) the caller did not have prior express written consent of the recipient. 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1). Plaintiffs have adequately pled that Defendant made multiple calls to both Oliver and Tippetts' cellular telephone numbers without prior express consent; the core of the parties' dispute is whether Plaintiffs have sufficiently alleged facts to support a reasonable inference that they were contacted by Defendant's ATDS or a pre-recorded or automated voice.

In alleging a TCPA claim, a plaintiff is not required to allege facts at the pleading stage that are wholly within the defendant's knowledge, such as the type of machine used for a communication. Torres v. Nat'l Enter. Sys., Inc., No. 12 C 2267, 2012 WL 3245520, at *3 (N.D. Ill. Aug. 7, 2012). This Court has, however, found that it is "not unreasonable... to require a plaintiff to describe the phone messages he received in laymen's terms or provide the circumstances surrounding them to establish his belief that the messages were pre-recorded or delivered via the [automatic telephone dialing system]." Johansen v. Vivant, Inc., No. 12 C 7159, 2012 WL 6590551, at *3 (N.D.Ill.Dec. 18, 2012). It is these facts, taken as a whole, that must give rise to a reasonable inference that defendant used an ATDS. Kramer v. Autobytel, Inc., 759 F.Supp.2d 1165, 1171 (N.D. Cal. 2010)

1. Plaintiff Oliver's TCPA claim

Defendant argues that Plaintiffs have alleged only a bare recitation of an element of the claim-that Defendant used an ATDS to contact Plaintiffs-which is insufficient to state a claim without other supporting details. While "abstract recitations of the elements of a cause of action or conclusory legal statements" are not enough to support a reasonable inference that Defendants used an ATDS, Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (citing Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.2009)), a plaintiff need only allege enough "by way of factual content to nudg[e]' his claim...across the line from conceivable to plausible.'" McCauley, 671 F.3d at 618 (quoting Iqbal, 129 S.Ct. at 1952). Plaintiffs, on the other hand, argue ...

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