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Dolemba v. Kelly Services, Inc.

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

January 31, 2017

HERMINIA DOLEMBA, on behalf of plaintiff and the class defined below, Plaintiff,
KELLY SERVICES, INC., and JOHN DOES 1-10, Defendants.


          SARA L.ELLIS, United States District Judge

         Plaintiff Herminia Dolemba brings a class action complaint against Defendant Kelly Services, Inc. (“Kelly”) and John Does 1-10, alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., and the Illinois Consumer Fraud Act (“ICFA”). Dolemba claims that Kelly and John Does 1-10 violated the TCPA and ICFA by calling her cellular telephone using an automatic telephone dialing system (“ATDS”) without her express consent. Kelly moves to dismiss Dolemba's claims and strike her class allegations. Because Dolemba consented to receiving employment-related calls, her TCPA claim fails. The Court also dismisses her ICFA claim because she cannot establish the elements of an unfair practices claim independently or based on a violation of the Automatic Telephone Dialers Act (“ITA”), 815 Ill. Comp. Stat. 305/1 et seq. Having dismissed both substantive claims, the Court need not address Kelly's request to strike Dolemba's class allegations.


On February 27, 2016, Dolemba received a call on her cellular phone from Kelly using the number 877-565-8456. Kelly used an ATDS to place the call. Because Dolemba did not answer the call, Kelly left a voicemail message, soliciting individuals for employment as machine operators in the Northlake and Melrose Park areas. Dolemba had previously applied for employment with Kelly in March 2007, indicating interest in positions using office skills such as accounts payable and accounts receivable. Dolemba's employment application includes her cellular phone number. In signing the application, Dolemba “authorize[d] Kelly to collect, use, store, transfer, and purge the personal information that [she] provided for employment-related purposes.” Doc. 35-1 at 5. Kelly never offered Dolemba a job, nor did Dolemba ever accept employment through Kelly. Dolemba also did not receive any communications from Kelly between the end of 2007 and February 2016. She had no reason to believe that Kelly still treated her application as active in 2016, with Kelly typically treating applications as outdated after a brief period of time.


         A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “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.” Iqbal, 556 U.S. at 678.


         I. TCPA Claim

         The TCPA prohibits the use of an ATDS or prerecorded voice to call a cellular telephone without the recipient's prior express consent.[2] 47 U.S.C. § 227(b)(1)(A)(iii). Kelly argues that Dolemba consented to receive calls regarding employment opportunities from Kelly and so has no actionable TCPA claim. Consent is an affirmative defense on which Kelly bears the burden of proof, with dismissal warranted only if Dolemba has pleaded herself out of court by alleging all the elements of the defense in her complaint. See Toney v. Quality Res., Inc., 75 F.Supp.3d 727, 734 (N.D. Ill. 2014) (defendant bears the burden of establishing affirmative defense of express consent, with a court able to dismiss suit on basis of such defense only if it is obvious on the face of the complaint); Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F.Supp.2d 898, 905 (N.D. Ill. 2012) (collecting cases noting that express consent is not an element of a plaintiff's TCPA prima facie case).

         The form of consent required depends on the content of the call: if the call includes advertisement or constitutes telemarketing, the consent must be in writing, but if the call “is not for such purposes, the consent may be oral or written.” 2015 Order, 30 FCC Rcd. 7961, ¶ 4; see also Id. ¶ 9 (“Prior express consent for these calls must be in writing if the message is telemarketing, but can be either oral or written if the call is informational.”).[3] Here, Kelly argues that even under the heightened standard requiring written consent, Dolemba's complaint fails because she provided her cellular phone number to Kelly in her employment application and, in the same application, expressly consented to Kelly using that phone number for “employment-related purposes.” Doc. 35-1 at 5. This language, according to Kelly, encompasses the call Dolemba received from Kelly informing her of a potential job as a machine operator. Dolemba does not dispute that she provided her cellular number to Kelly in her employment application but instead argues that the call she received exceeded the scope of her consent and that her consent expired long before she received the call in 2016.

         Taking her second argument first, “a called party may revoke consent at any time and through any reasonable means.” 2015 Order, 30 FCC Rcd. 7961, ¶ 47. If an individual does not revoke his or her consent, however, it does not expire at some point in time on its own. See Payton, 164 F.Supp.3d at 1065 (two year time lapse between consent and text message “of no significance, because consent under the TCPA does not have an expiration date and is considered effective until revoked”); Kolinek v. Walgreen Co. (Kolinek I), No. 13 C 4806, 2014 WL 518174, at *3 (N.D. Ill. Feb. 10, 2014) (any argument as to validity of consent due to passage of ten years between provision of number and receiving unlawful call would fail because consent under TCPA does not expire on its own), vacated on other grounds, Kolinek II, 2014 WL 3056813 (N.D. Ill. July 7, 2014).[4] Although the Court acknowledges that Dolemba need not have anticipated or pleaded revocation of consent in her complaint, she filed her second amended complaint to address the consent defense raised by Kelly in its previously filed motion to dismiss, and so Dolemba presumably would have included any allegations concerning revocation if she could have. Instead, Dolemba only maintains that she had no reason to believe her application remained active and that, “on information and belief, ” Kelly treats applications as outdated after some period of time. Doc. 35 ¶¶ 16-17. But the Court cannot reasonably construe these allegations as Dolemba conveying a revocation of her consent to Kelly through “reasonable means, ” for silence or inaction cannot be effective. Instead, the only inference the Court can draw from Dolemba's allegations is that she did not have further communications with Kelly after consenting to receive employment-related communications from Kelly, thus meaning that her consent remained valid in 2016. See Kolinek I, 2014 WL 518174, at *3 (“[C]onsent under the TCPA does not expire on its own; it must be revoked.”).

         Kelly next argues that Dolemba agreed to receive employment-related communications and that the message she received, recruiting for machine operators, falls within the scope of this consent. Dolemba, on the other hand, attempts to draw the bounds surrounding her consent more narrowly, alleging that she indicated in her application that she sought “positions using office skills such as accounts payable and accounts receivable, not as a machine operator.” Doc. 35 ¶ 14. The “scope of the consent must be determined upon the facts of each situation.” In re GroupMe, Inc./Skype Comm'cns S.A.R.L. Petition for Expedited Declaratory Ruling, 29 FCC Rcd. 3442, 2014 WL 1266074, ¶ 11 (Mar. 27, 2014). But Dolemba's attempt to recast her consent, which stated that she allowed Kelly to use her personal information for “employment-related purposes, ” Doc. 35-1 at 5, does not defeat Kelly's motion to dismiss. The call Dolemba received clearly related to an employment opportunity. Although not specifically tailored to the exact job interests Dolemba indicated in her application, it still fell within the broad consent she gave to Kelly to use her cellular phone number to contact her generally for employment-related purposes regardless of whether that job matched her job interests. See Payton, 164 F.Supp.3d at 1065 (“[T]he initial reason for disclosing Payton's cellular number to Kale was to engage in discussions of developing a business relationship, and the text message received approximately two years after merged discussions had ended also related to developing a business relationship, albeit a different type of business relationship[.]”); cf. Toney, 75 F.Supp.3d at 735-37 (in providing phone number for questions about a merchandise order, plaintiff did not consent to calls offering membership services of another party); Kolinek II, 2014 WL 3056813, at *4 (court could not find on motion to dismiss that calls were within scope of consent where plaintiff initially gave phone number for identity verification purposes and then received calls reminding him to refill his prescription). Because Dolemba has pleaded herself out of court by attaching her employment application, which indicates she consented to receiving calls from Kelly for employment-related purposes, the Court dismisses her TCPA claim. Because any further amendment would be futile, the Court dismisses the claim with prejudice.

         II. ICFA Claim

         Dolemba also claims that Kelly engaged in unfair acts and practices by making the allegedly unauthorized robocall to her cellular phone, in violation of §§ 2 and 2Z of ICFA, 815 Ill.Comp.Stat. 505/2, 2Z. To state an ICFA claim, Dolemba must allege (1) a deceptive or unfair act or practice by Kelly, (2) Kelly's intent that Dolemba rely on the deceptive or unfair practice, (3) the unfair or deceptive practice occurred in the course of conduct involving trade or commerce, and (4) Kelly's unfair or deceptive practice caused Dolemba actual damage. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir. 2012); Kim v. Carter's Inc., 598 F.3d 362, 365 (7th Cir. 2010). Dolemba may recover for either deceptive or unfair conduct, but she pursues only an unfair practices claim. Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 960, 201 Ill.2d 403, 266 Ill.Dec. 879 (2002); Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010) (“A plaintiff may allege that conduct is unfair ...

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