United States District Court, N.D. Illinois, Eastern Division
GEORGE MOORE, individually and on behalf of all others similarly situated, Plaintiff,
CHW GROUP, INC., d/b/a Choice Home Warranty, a New Jersey Corporation, Defendant.
MEMORANDUM ORDER AND OPINION
JOHNSON COLEMAN UNITED STATES DISTRICT COURT JUDGE
CHW Group, Inc. has moved to dismiss the Complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In
the alternative, CHW moves to strike Moore's class
allegations pursuant to Federal Rules of Civil Procedure
12(f) or 23. For the reasons outlined below, the Court grants
CHW's Motion to Dismiss and denies their Motion to Strike
as moot .
alleges that he added his residential phone number to the
do-not-call registry on July 6, 2003. Starting in November
2016, Moore began to receive calls on his residential line
soliciting him to purchase Choice Home Warranty
(“CHW”) services. Specifically, Moore received
multiple calls on November 14 and 23, 2016, followed by
subsequent calls between November 2016 and March 2017. Moore
alleges that the caller did not obtain prior express consent
to continue with the call at the inception of each call.
November 25, 2016, Moore emailed CHW with the title
“TCPA Violations” to inform CHW of four
telemarketing calls he received on November 23, 2016. In the
email, Moore stated that he never completed any contact form
for CHW and had no use for their service. An agent from CHW
responded to Moore that day and informed him that his phone
number would be removed from their database. Later that day,
Moore received another call regarding CHW services, and Moore
again informed the agent in writing that he did not wish to
be contacted. Moore emailed CHW a third time on November 28,
2016, in response to another call he received that day and
requested that CHW stop calling him.
December 9 and 13, 2016, Moore received calls from CHW using
a pre-recorded solicitation. An agent called Moore on
December 14, 2016, and Moore asked the agent how CHW obtained
his phone number. The agent stated that Moore had previously
visited the CHW website and inquired about a home warranty.
Moore informed the agent that he had never visited the CHW
website and requested that the agent provide him the date he
allegedly did so. The agent did not provide the information
and instead hung up the call. Moore continued to receive
unsolicited calls regarding CHW throughout the month of
December 2016 and additional calls in January and March 2017.
Several of the calls were made more than thirty days after
Moore requested to no longer receive calls.
then brought this suit, alleging that CHW violated the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, et seq., and the Illinois
Telephone Solicitations Act (“ITSA”), 815 ILCS
413/25. Moore seeks actual and statutory damages, an
injunction requiring CHW to cease all unsolicited calls, and
an award of reasonable attorneys' fees. CHW has moved to
dismiss the Complaint for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) and for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6). In the
alternative, CHW moves to strike Moore's nationwide and
“fail-safe” class allegations pursuant to Federal
Rules of Civil Procedure 12(f) or 23.
considering a Rule 12(b)(6) motion to dismiss, the Court
accepts all of the plaintiff's allegations as true and
views them in the light most favorable to the plaintiff.
Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632
(7th Cir. 2013). To survive a motion to dismiss, a complaint
must contain allegations that “state a claim to relief
that is plausible on its face.” Id. at 632
(internal quotations and citation omitted). The plaintiff
does not need to plead particularized facts, but the
allegations in the complaint must be sufficient to
“raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Threadbare
recitals of the elements of a cause of action are not
sufficient to survive a motion to dismiss. Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
12(b)(1) motion seeks dismissal of an action over which a
court allegedly lacks subject-matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Standing is a threshold requirement in
every federal claim and must be present at the time the
lawsuit is filed. See Groshek v. Time Warner Cable,
Inc., 865 F.3d 884, 886 (7th Cir. 2017), cert. denied,
138 S.Ct. 740, 199 L.Ed.2d 617 (2018). The alleged injury
must be “concrete” or “real”; a mere
assertion of statutory damages is insufficient. Spokeo,
Inc. v. Robins, 136 S.Ct. 1540, 1543, 194 L.Ed.2d 635
CHW contends that Count I fails to state a claim under the
TCPA because Moore has not alleged that the calls were made
using a pre-recorded voice or alleged the identity of the
party making the calls. Moore alleges that CHW violated the
TCPA, 47 U.S.C. § 227(b)(1)(B), by placing pre-recorded
telephone calls to residential telephone numbers without
proper consent. Under the TCPA, a plaintiff must allege the
following four elements to state a cause of action: 1) a call
was made; 2) the caller used an automated telephone dialing
system (“ATDS”) or artificial or prerecorded
voice; 3) the telephone number called was to a residential
line; and 4) the caller did not have prior express consent of
the recipient. 47 U.S.C. § 227(b)(1)(B); 47 C.F.R.
§ 64.1200(a)(3); Sojka v. DirectBuy, Inc., 35
F.Supp.3d 996, 1000 (N.D. Ill. 2014) (Feinerman, J.).
alleges that he received a number of calls on his residential
line. Although the identity of the caller or type of call is
generally not stated, Moore alleges that the calls he
received from CHW on December 9 and 13, 2016 used a
pre-recorded solicitation without further detail. Repeating
an element of the cause of action without additional factual
allegations is not sufficient to state a claim under the
TCPA. See, e.g., Johansen v. Vivant, Inc., No. 12 C
7159, 2012 WL 6590551, at *3 (N.D. Ill.Dec. 18, 2012) (Aspen,
J.) (dismissing TCPA claim where “Plaintiff provides[d]
no information about the two messages he allegedly received
from [defendant] other than stating that [defendant] left
pre-recorded messages on his cellular phone using an
ATDS”); Hanley v. Green Tree Servicing, LLC,
934 F.Supp.2d 977, 983 (N.D. Ill. 2013), on reconsideration
(June 7, 2013) (Castillo, J.) (same). At the very least Moore
is required to plead a layman's explanation for why he
believed that the solicitation was pre-recorded. Without
this, Moore does not supply sufficient independent facts
“to raise a reasonable expectation that discovery will
reveal evidence” of the alleged misconduct.
Twombly, 550 U.S. at 556. Because Count I fails to
allege the second element, the Court need not further assess
whether Moore sufficiently alleges that CHW or their agent
initiated the calls at issue. The Court dismisses Count I for
failure to state a claim.
CHW asserts that Count II fails to state a claim under the
TCPA because Moore has not alleged whether the calls were
unlawful solicitation or the identity of the party making the
alleged calls. Count II alleges that CHW violated the TCPA by
calling consumers who are registered on the do-not-call list.
The TCPA prohibits any person or entity from initiating any
“telephone solicitation” to a “residential
telephone subscriber who has registered his or her telephone
number on the national do-not-call registry of persons who do
not wish to receive telephone solicitations that is
maintained by the Federal Government ...” 47 C.F.R.
§ 64.1200(c)(2); 47 U.S.C. § 227(c)(1). Here, Moore
alleges that during the series of calls he received, he was
solicited to purchase CHW services. (Dkt. 1 ¶¶ 12,
16, 41.) Although Moore could have included additional detail
regarding the nature of the solicitation, these allegations
are distinct from those this Court considered in Norman
v. N. Illinois Gas Co., No. 13 CV 3465, 2014 WL 184774,