United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN, UNITED STATES DISTRICT JUDGE.
Taraneh Vessal filed a two-count First Amended Complaint,
alleging violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. §227(b)(1)(iii), and the
Illinois Consumer Fraud and Deceptive Business Practices Act,
815 ILCS 505/1. Defendant Alarm.com moves to dismiss the
First Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim . For the
reasons set forth below, this Court grants in part and denies
in part the motion.
following facts are taken from the First Amended Complaint.
(Dkt. 29). Plaintiff Taraneh Vessal registered her cell phone
on the Do-Not-Call Registry, and most recently renewed that
registration in March 2016. Around the same time, she began
receiving calls from entities trying to sell her
Alarm.com's home security system.
provides interactive security and home alarm monitoring
solutions for residential and commercial properties around
the country. Alarm.com does not sell its services directly to
consumers, but relies on a network of third-party dealers to
generate subscribers. The complaint contains a list of
fifty-six telephone numbers alleged to be used by
Alarm.com's third-party dealers. Vessal alleges on
information and belief that the enumerated phone numbers are
regularly used by third-party dealers. The complaint alleges
that Alarm.com controls the details of sale, installation,
maintenance, and support for their home security systems.
Alarm.com also controls the third-party dealers by retaining
the right to discipline and terminate the relationships.
phone calls Vessal received were attempts to sell her a
“3-in-1 wireless home security system.” Vessal
has received calls from American Home Security, American
Security Services, Central Security Group, United Security,
and Bayside Security, among others. She believes that each of
these entities have agreements with Alarm.com as third-party
dealers. Some of the callers directed Vessal to Alarm.com
when she asked for a web address. When she answers the calls,
Vessal hears a recorded message offering her options to opt
out or to speak with a representative. The complaint lists
dates and phone numbers for nine instances when Vessal
followed the prompt to opt out. (Id. at ¶ 26).
She also spoke with representatives on multiple occasions,
requesting removal from their call list. In July 2016, Vessal
spoke with a representative from United Security, to whom she
stated, “I asked twice to be removed, why are you
calling me?” and “Remove me from your
list.” Vessal alleges that United Security's
representative responded that they would remove her from the
list and from their database. She further alleges on
information and belief that United Security is a third-party
dealer for Alarm.com. (Id. at ¶ 29).
separate occasion, Vessal alleges that she spoke to a
representative named “Jen” from Central Security
Group and told the representative not to call her again and
was told that she would be removed from their list. Vessal
also alleges on information and belief that Central Security
Group is a third-party dealer for Alarm.com. (Id. at
¶ 31). On September 27, 2016, Vessal answered a call
from American Security Services and the representative said
he was calling on behalf of Monitronics. (Id. at
¶ 33). She alleges on information and belief that
Monitronics is a third-party dealer for Alarm.com.
(Id. at ¶ 34). On September 29, 2016, Vessal
answered a call from American Home Security and asked the
representative to take her off of the list. She alleges on
information and belief that American Home Security is a
third-party dealer for Alarm.com. (Id. at ¶
36). Plaintiff asserts that she has received more than 75
calls despite her requests to be removed from call lists and
alleges harm from the calls from aggravation and intrusions
on her privacy, and increased usage of her telephone
services, loss of cell phone capacity and battery life, among
other things. (Id. at ¶ 43). Based on these
allegations, Vessal asserts that Alarm.com violated the
Telephone Consumer Protection Act and the Illinois Consumer
Fraud and Deceptive Business Practices Act.
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). When considering the motion, 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
dismissal, 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 must be
plausible rather than merely conceivable or speculative,
meaning that the plaintiff must include enough details about
the subject-matter of the case to present a story that holds
together. But the proper question to ask is still
could these things have happened, not did
they happen.” Carlson v. CSX Transp., Inc.,
758 F.3d 819, 826-27 (7th Cir. 2014) (emphasis in original)
(internal citations omitted).
moves to dismiss both counts of the First Amended Complaint
for failure to state a claim. Alarm.com argues that the First
Amended Compliant fails to allege sufficient facts to draw a
reasonable inference that Alarm.com is liable for the conduct
of the callers. Alarm.com further contends that Vessal's
allegations of “dealer agreements” are too
conclusory to satisfy even the minimal requirements of Rule
8. According to Alarm.com the ICFA claims fail because the
damages alleged do not qualify as actual damages under the
statute and there are no allegations of a deceptive act or
practice committed by Alarm.com. This Court will address each
argument in turn.
Count I: TCPA
TCPA prohibits any person from “mak[ing] any call
(other than a call made for emergency purposes or made with
the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or
prerecorded voice… to any telephone number assigned to
a… cellular telephone service… unless such call
is made solely to collect a debt owed to or guaranteed by the
United States.” 47 U.S.C. § 227 (b)(1)(A)(iii). In
Count I, plaintiff alleges that Alarm.com is directly liable