United States District Court, N.D. Illinois, Eastern Division
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Blackboard, Inc.’s (Blackboard) and Blackboard Connect, Inc.’s (Blackboard Connect) motion to dismiss and motion in the alternative to stay. For the reasons stated below, the motion to dismiss and the motion to stay are denied.
Plaintiff Rafael Valladares (Valladares) alleges that Defendants entered into a contract (Contract) with the Chicago Public Schools (CPS) to provide an automated calling service for CPS. Valladares contends that after the Contract was entered into, Defendants made numerous unsolicited and unauthorized prerecorded telephone calls (Robocall Notifications) to his cellular telephone on behalf of CPS. Valladares maintains that although he repeatedly contacted and informed CPS that Defendants were not authorized to call his cellular phone, the Robocall Notifications continued. Valladares’ complaint consists of two claims alleging violations of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227 against Defendants. Defendants now move to dismiss all claims, or in the alternative, to stay the instant action.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that “plausibly suggest that the plaintiff has a right to relief, raising that possibility above a ‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.” E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” and that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).
Defendants argue that Valladares has failed to allege sufficient facts to state a valid claim for relief. (Mem. 1-15). Defendants also request, in the alternative, that the court stay the instant action pending a ruling by the Federal Communications Commission (FCC).
Defendants and Valladares have each attached copies of the Contract to their briefs. (Ex. A). Generally, a court “may only consider the plaintiff’s complaint when ruling on a Rule 12(b)(6) motion.” Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013). However, Federal Rule of Civil Procedure 10(c) permits certain documents attached to Rule 12(b)(6) motions to dismiss to be considered. Id. Such documents “are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to his claim.” McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006)(internal quotations omitted)(quoting 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002)). The Contract is referenced in Valladares’ complaint and is central to his TCPA claim. Accordingly, the court will consider the Contract for purposes of adjudicating the instant motion to dismiss without converting the motion into a motion for summary judgment.
Defendants argue that Blackboard is improperly named as a defendant in this action and should be removed. (Mem. 10-11). Specifically, Defendants contend that Valladares makes no allegations against Blackboard. (Mem. 10-11). Defendants also maintain that Blackboard was not a party to the Contract and should therefore not be held liable for the alleged actions of its subsidiary, Blackboard Connect. (Mem. 10-11). Valladares, however, references the Contract in his complaint and specifically alleges that both Blackboard and Blackboard Connect violated the TCPA when they called his cellular phone. (Compl. 1-12). Further, to the extent Defendants argue that Blackboard was not a party to the Contract, page seven of the Contract lists addresses for both Blackboard and Blackboard Connect and requires that all notices in connection with the Contract be sent to both Blackboard and Blackboard Connect. (Ex. A 7). Additional discovery might establish that Blackboard was not a party to the Contract and not liable in this action. However, at this juncture, Valladares has sufficiently alleged facts that suggest Blackboard may have violated the TCPA. (Compl. 1-12). Accordingly, Defendants’ request to remove Blackboard as a named defendant is denied.
III. Motion to Dismiss
Defendants argue that Valladares has failed to allege sufficient facts to state a valid claim under the TCPA. The TCPA ...