United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON, UNITED STATES DISTRICT JUDGE.
before the Court is defendant Red Parrot Distribution,
Inc.'s motion to dismiss plaintiff's class action
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) (Doc. 14). Plaintiff Camp Drug Store, Inc.,
(hereinafter “Camp Drug”) opposes the motion
(Doc. 26). For the reasons explained below, the Court DENIES
defendant's motion to dismiss (Doc. 14).
Camp Drug brings this putative class action against Defendant
Red Parrot Distribution, Inc. (hereinafter “Red
Parrot”), alleging that Red Parrot sent plaintiff at
least two unsolicited advertisements by facsimile in
violation of the Telephone Consumer Protection Act, 47 U.S.C.
§ 227 (TCPA) (Doc. 1, ¶ 2). Camp Drug also alleges
a conversion claim. (Id. at ¶ 58-63).
bringing this action on behalf of a class, the two-count
complaint alleges that Red Parrot violated the TCPA by
sending “advertisements by facsimile to Plaintiff and
more than thirty-nine (39) other persons.”
(Id. at ¶ 22). Camp Drug also asserts that by
sending unsolicited and unauthorized advertisements to its
fax machine and that of others, Red Parrot unlawfully
converted the fax machine to its own use. Furthermore, Camp
Drug notes that “when printed (as in Plaintiff's
case), Defendant also improperly and unlawfully converted the
class members' paper and toner to Defendant's own
use.” (Id. at ¶ 58). Under the TCPA, Camp
Drug seeks statutory damages, to be trebled if the facts show
that Red Parrot acted willfully or knowingly, along with
injunctive relief. For its conversion count, Camp Drug asks
for an award of “appropriate damages” along with
punitive damages, attorneys' fees, and costs.
31, 2017, Red Parrot filed the pending motion to dismiss
(Doc. 14), to which Camp Drug opposes on grounds that its
allegations support the reasonable inference that Red Parrot
did, in fact, send the faxes or cause them to be sent, that
Red Parrot's class certification challenge is premature,
and that Camp Drug's conversion claim is supported by
case law. (Doc. 26).
Motion to Dismiss
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) challenges the sufficiency of the complaint for
failure to state a claim upon which relief may be granted.
Gen. Hallinan v. Fraternal Order of Police Chicago Lodge
No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme
Court explained in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), that to withstand
Rule 12(b)(6) dismissal, a complaint “does not need
detailed factual allegations, ” but must contain
“enough facts to state a claim for relief that is
plausible on its face.” 550 U.S. at 570.
Twombly and Ashcroft v. Iqbal, 556 U.S. 662
(2009), retooled federal pleading standards, but notice
pleading remains all that is required in a complaint.
“A plaintiff still must provide only ‘enough
detail to give the defendant fair notice of what the claim is
and the grounds upon which it rests and, through his
allegations, show that it is plausible, rather than merely
speculative, that he is entitled to relief.'”
Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.
2008) (citation omitted). In ruling on a motion to dismiss
brought pursuant to 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);
See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir.
2009). Additionally, when evaluating a Rule 12(b)(6) motion,
a court can consider matters outside the pleadings if they
are referred to in a plaintiff's complaint and are
central to the plaintiff's claim. See 188 LLC v.
Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir.2002).
The Court now turns to address the merits of the motion.
Count 1: TCPA
mentioned above, Camp Drug's complaint alleges that Red
Parrot violated the TCPA by sending two unsolicited
advertisements to Camp Drug by facsimile. In its motion to
dismiss, Red Parrot contends that Camp Drug fails to
establish that the alleged faxes in question were sent by, or
on behalf of, Red Parrot (Doc. 14).
TCPA clearly states that it is unlawful for any person
“to use any telephone facsimile machine, computer, or
other device to send, to a telephone facsimile machine, an
unsolicited advertisement....” 47 U.S.C. §
227(b)(1)(C). The TCPA defines unsolicited advertisement as
“any material advertising the commercial availability
or quality of any property, goods, or services which is
transmitted to any person without that person's prior
express invitation or permission, in writing or
otherwise.”47 U.S.C. § 227(a)(5). The TCPA
provides that the sender of these unsolicited fax
advertisements shall be subjected to a statutory penalty of
$500 per violation. 47 U.S.C. § 227(b)(1)(C). There are
two ways in which a person or entity may qualify as a
"sender" under the TCPA. First, the fax sender may
be defined as "the person or entity on whose behalf a
facsimile unsolicited advertisement is sent..." 47
C.F.R. § 64.1200(f)(10). Second, the fax sender may be
defined as the person or entity “whose goods or
services are advertised or promoted in the unsolicited
Drug's complaint alleges that “Red Parrot is liable
for the fax advertisements at issue because it sent the
faxes, caused the faxes to be sent, requested and paid for
the faxes to be sent, participated in the activity giving
rise to or constituting the violation, provided materials
from which to create the advertisements, designed or approved
the faxes to be sent, or the faxes were sent on its
behalf.” (Doc. 1 at ¶ 54). Red Parrot cites to
Cin-Q Automobiles, Inc. v. Buccaneers Limited
Partnership, No. 8:13-cv-01592-AEP, 2014 WL 7224943
(M.D. Fla. Dec. 17, 2014) (Porcelli, J.), to support its
argument that Camp Drug failed to establish that Red Parrot
was the ‘sender' of the alleged faxes at issue. Red
Parrot argues that Cin-Q Automobiles, Inc., stands
for the premise that merely being the party whose product or
service is advertised or promoted will not necessarily result
in that party being declared a ‘sender.' However,
as noted by Camp Drug, Cin-Q Automobiles, Inc.
addresses cross motions for summary judgment where the
parties were afforded an opportunity to conduct discovery as
to whether the defendant qualified as a ‘sender'
under the TCPA. The Court in Cin-Q Automobiles,
Inc., did not dismiss the case at the pleading stage
without any benefit of discovery. In this case, the parties
have yet to engage in discovery. Thus, when considering a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), the Court looks solely to the pleadings and those
documents referred to in Camp Drug's complaint that are
central to its claims in order to determine if the complaint
survives. See 188 LLC, 300 F.3d at 735.
to the characteristics of the subject faxes, taken together
with Camp Drug's allegations in the complaint, the
pleadings sufficiently support the reasonable inference that
Red Parrot did, in fact, send the faxes or cause them to be
sent. The faxes, on their face, state that they are
"from" Red Parrot Distribution (Docs 1-1 &
1-2). They also list Red Parrot's web address, telephone
number, and fax number, all of which suggest ways to order
the products presented in the fax advertisements. Therefore,
the Court finds ...