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Collins v. Travel, Entertainment and Marketing, LLC

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

January 10, 2017

BRYAN COLLINS, individually and on behalf of all others similarly situated, Plaintiff,
v.
TRAVEL, ENTERTATINMENT, AND MARKETING, LLC, a California limited liability company, Defendant.

          MEMORANDUM ORDER AND OPINION

          Robert M. Dow, Jr. United States District Judge

         Plaintiff Bryan Collins (“Plaintiff”), on behalf of himself and a proposed class, brings his complaint [1] against Defendant Travel, Entertainment, and Marketing, LLC (“Defendant” or “TEAM”) for alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”) and common law conversion. Before the Court is Defendant's motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction and failure to state a claim [20]. Count I, for violation of the TCPA, shall remain in the case. Count II, for common law conversion, is dismissed without prejudice. This case is set for further status hearing on January 25, 2017 at 9:00 a.m. The parties are directed to confer and to submit a joint status report by January 23, 2017 that includes a discovery plan and a statement of whether they wish to schedule a settlement conference prior to engaging in discovery.

         I. Background [1]

         Short Message Services (“SMS”) is a messaging system that allows for the transmission and receipt of short text messages to and from wireless telephones. Receiving SMS message advertisements “can actually cost their recipients money” because wireless telephone users must either pay their service providers for each text message received or have a usage allocation deducted from their text messaging plans. [1] at 4. Due to growing concerns over unwanted SMS message advertising, the FCC has promulgated rules requiring senders of SMS message advertisements for goods or services to obtain recipients' express written consent prior to sending such messages.

         This case concerns Defendant's alleged practice of sending unsolicited SMS messages to wireless telephone numbers without their owners' express written consent. Defendant is an online event planning company specializing in organizing and booking formal outings for sorority and fraternity chapters. Defendant is organized as a California LLC and has its principal place of business in Newport Beach, California. Plaintiff is an individual living in Cook County, Illinois.

         On January 7, 2015, Defendant sent an SMS to Plaintiff's wireless phone with the message, “HNY! On Exec this Spring? Use formalbuilder.com & get paid 4 ur feedback! Plus u get to use the free service that helps u save $$ planning Formal! bit.ly/teamexp.” [1] at 5. Defendant sent Plaintiff a second SMS message later that night, which read, “Need Formal ideas? Ok, we got em! Free Service, Free Options, No Obligations - Sent to you in 24 hrs! Last min planning = more $$ Get Options here http://bit.ly/MYFORMAL.” Id. The links formalbuilder.com, bit.ly/teamexp, and http://bit.ly/MYFORMAL directed Plaintiff to Defendant's websites. The formalbuilder.com website (“Website”) allows potential customers to plan, coordinate, and book formal events at destination third-party venues and to book third-party vendors and services, such as photographers, DJs, and charter buses. The messages were sent using an SMS “short code.” Id.

         Plaintiff alleges on information and belief that thousands of other consumers have also received unsolicited SMS messages from Defendant and have been damaged as a result.

         In Count I of his complaint, Plaintiff alleges that Defendant violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), by sending unsolicited SMS messages to Plaintiff and the proposed class members on their wireless telephones. Plaintiff alleges that Defendant sent the messages, or had them sent on its behalf, “using equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers, ” and “equipment that sent the text messages to Plaintiff and other Class members simultaneously and without human intervention.” [1] at 10. According to Plaintiff, “the Class members suffered actual damages in the form of monies paid to receive the unsolicited text messages on their wireless phones and, under section 227(b)(3)(B), are each entitled to . . . a minimum of $500.00 in damages for each such violation of the TCPA.” [1] at 10 (citing 47 U.S.C. § 227(b)(3)(B)).

         In Count II, Plaintiff alleges that Defendant's actions constitute common law conversion, by “convert[ing] to its own use data usage under Plaintiff's and the other Class members' wireless telephone plans and components of Plaintiff's and the other Class members' wireless telephones.” [1] at 11. As redress, Plaintiff seeks: (1) an injunction requiring Defendant to cease all unsolicited text message activities; (2) an award of statutory damages under the TCPA; (3) an award of actual damages for common law conversion; and (4) costs and reasonable attorneys' fees.

         II. Legal Standard

         Defendant seeks dismissal of Plaintiff's complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). “For purposes of a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6), the court accepts all well-pleaded factual allegations as true and construes all reasonable inferences in the plaintiff's favor.” Mutter, 17 F.Supp.3d at 756. A Rule 12(b)(1) motion challenges federal subject matter jurisdiction. In ruling on the motion, the district court may look beyond the jurisdictional allegations alleged in the complaint and take into consideration whatever evidence has been submitted on the issue to determine if subject matter jurisdiction exists. County of Cook v. HSBC N. Am. Holdings Inc., 136 F.Supp.3d 952, 958 (N.D. Ill. 2015). The burden of proof is on the party asserting that jurisdiction exists. Id. A Rule 12(b)(6) motion challenges the legal sufficiency of the complaint. To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint must allege facts which, when taken as true, “‘plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level.'” Cochran v. Illinois State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016) (quoting EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

         III. Analysis

         A. 12(b)(1)

         Defendant argues that Plaintiff's complaint should be dismissed because it lacks sufficient factual allegations to establish that Plaintiff has Article III standing. Specifically, Defendant asserts that Plaintiff fails to allege that “he ...


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