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Franklin v. Depaul University

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

July 28, 2017



          John Z. Lee, United States District Judge

         Pro se Plaintiff Ricky R. Franklin has filed this suit against Defendant DePaul University alleging violations of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. DePaul moves to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). In addition, DePaul challenges Franklin's standing to bring this case. For the reasons set forth below, DePaul's motion to dismiss is denied.

         Factual Background

         According to Franklin, DePaul sent a series of unsolicited text messages to his personal cell phone. On November 18, 2015, Franklin received an automated text message from short code #467467 to his cell phone. Compl. ¶ 20, ECF No. 6. The text read, “Thanks for opting in! Watch for important news/deadlines from Depaul (maximum one per week). Message and data rates apply[.] Text OUTDP to opt out.” Id. (spacing added). Franklin alleges that he never provided his cell phone number to DePaul, nor did he give prior express consent to be called. Id. ¶ 25. Upon receiving the initial message, he immediately responded by replying “Out.” Id. ¶ 21. DePaul's automated system responded with: “ShopText: Sorry we didn't understand your text. Or your session expired. Check the spelling and reply w/ the keyword. No quotes or spaces.

         For help, reply HELP.” Id. ¶ 22 (spacing added). Franklin states that he sent several subsequent text messages in an attempt to stop the messaging campaign. Id. ¶ 23. Nevertheless, he continued to receive at least seventeen unsolicited text messages after telling DePaul to stop contacting him. Id. ¶ 24. He also alleges that he continues to receive such text messages to the present day. Id. Based on these facts, Franklin claims that DePaul violated the TCPA.


         DePaul moves to dismiss Franklin's complaint for lack of standing under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Because the Court's “first task, as it is in every case, is to determine whether [it has] subject matter jurisdiction” over the plaintiff's claims, Swan v. Bd. of Educ. of City of Chi., 956 F.Supp.2d 913, 917 (N.D. Ill. 2013) (quoting Grinnell Mut. Reins. Co. v. Haight, 697 F.3d 582, 584 (7th Cir. 2012)) (internal quotation marks omitted), the Court will address the issue of standing before turning to the sufficiency of Franklin's allegations under Rule 12(b)(6).[1]

         I. Rule 12(b)(1): Standing

         Under Rule 12(b)(1), a defendant may move to dismiss claims over which the federal court lacks subject-matter jurisdiction, including claims for which the parties lack standing. See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009); Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999). In ruling on a Rule 12(b)(1) motion, the Court must accept as true all well-pleaded facts and may look beyond the jurisdictional allegations to evidence submitted on the issue of subject-matter jurisdiction. St. John's United Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007). The Court must also draw all reasonable inferences in the plaintiff's favor. Id.

         “[I]f the litigants do not have standing, the Court is without authority to consider the merits of the action.” Swan, 956 F.Supp.2d at 918 (citing Warth v. Seldin, 422 U.S. 490, 498 (1975); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). In a TCPA case, a plaintiff must have both Article III standing and statutory standing to bring his claims. See Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1549 (2016) (holding that a plaintiff must satisfy Article III standing requirements separately from the requirement of statutory standing); D.G. ex rel. Tang v. William W. Siegel & Assocs., Attorneys at Law, LLC, 791 F.Supp.2d 622, 625 (N.D. Ill. 2015) (distinguishing the issue of statutory standing in TCPA case from the issue of Article III standing).

         Article III standing requires the plaintiff to show a “personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 678 (2016) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). Article III “injury-in-fact” is a concrete and particularized, actual or imminent invasion of a legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In ruling on a motion to dismiss for lack of standing, the court will not presume an injury to be too minor, because “[s]uch a presumption would be inconsistent with the court's duty to draw reasonable inferences of fact” in the plaintiff's favor. Centerline Equip. Corp. v. Banner Pers. Serv., Inc., 545 F.Supp.2d 768, 779 (N.D. Ill. 2008).

         In turn, a plaintiff has statutory standing where his “interests fall within the zone of interests protected by the law invoked.” Bank of Am. Corp. v. City of Miami, 137 S.Ct. 1296, 1302 (2017) (internal quotation marks omitted); accord United States v. All Funds on Deposit with R.J. O'Brien & Assocs., 783 F.3d 607, 617 (7th Cir. 2015). In other words, the text of the statute from which the plaintiff's claim arises must indicate that “Congress has accorded this injured plaintiff the right to sue the defendant to redress his injury.” D.G. ex rel. Tang, 791 F.Supp.2d at 624 (quoting Graden v. Conexant Sys. Inc., 496 F.3d 291, 295 (3d Cir. 2007)).

         First, Franklin has Article III standing to bring this case. He alleges that DePaul sent him unwanted text messages in a manner that violated his right of privacy. Compl. ¶¶ 12, 20, 24. Such alleged injury falls squarely within the body of cases where courts have found sufficient injury to meet the injury requirement to bring a TCPA claim. See Dolemba v. Ill. Farmers Ins. Co., 213 F.Supp.3d 988, 993 (N.D. Ill. 2016); Aranda v. Caribbean Cruise Line, Inc., 202 F.Supp.3d 850, 854-57 (N.D. Ill. 2016); Martin v. Leading Edge Recovery Sols., LLC, No. 11 C 5886, 2012 WL 3292838, at *2-4 (N.D. Ill. 2012); see also Caudill v. Wells Fargo Home Mortg., Inc., No. 5:16-066-DCR, 2016 WL 3820195, at *2 (E.D. Ky. 2016) (holding that plaintiff had standing to bring TCPA claim and noting that “[plaintiff's] alleged harms, such as invasion of privacy, have traditionally been regarded as providing a basis for a lawsuit in the United States”); Mey v. Got Warranty, Inc., 193 F.Supp.3d 641, 644-45 (N.D. W.Va. 2016) (noting that unwanted calls in violation of the TCPA may cause monetary injury by causing the consumer to incur charges for calls and electricity costs to recharge the phone). Furthermore, the alleged violation of Franklin's privacy is traceable to DePaul's text messages, and if he prevails, Franklin's injury may be redressed by recovery of statutory damages.

         DePaul suggests that there may now be a more stringent standard to show injury-in-fact to establish Article III standing following the Supreme Court's decision in Spokeo, Inc. v. Robbins, 136 S.Ct. 1540 (2016). See Def.'s Mem. Supp. at 1 n.1; Reply at 1 n.1. In Spokeo, the Court held that to establish Article III standing, in addition to a “particularized” injury, the plaintiff must have a “concrete” injury, or a “de facto” or “real” injury that “actually exist[s].” Spokeo, 136 S.Ct. at 1548. Although the contours of Spokeo are still being flushed out, courts post-Spokeo have continued to find Article III standing in cases alleging violations of the TCPA where the defendant placed unsolicited calls to a consumer's cell phone. See, e.g., Dolemba, 213 F.Supp.3d at 992-94; Aranda, 202 F.Supp.3d at 853-59 (“[B]oth history and the judgment of Congress ...

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