United States District Court, N.D. Illinois, Eastern Division
GLEN ELLYN PHARMACY, INC., individually and behalf of others similarly situated, Plaintiff,
KLOUDSCRIPT, INC., and JOHN DOES 1-10, Defendants.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge United States District Court
reasons stated herein, Defendant's Motion to Dismiss
(Dkt. No. 16) is granted in part and denied in part.
Glen Ellyn Pharmacy, Inc. is a pharmacy with offices in Glen
Ellyn, Illinois. (Compl. ¶¶ 3, 10, Dkt. No. 1.)
Defendant Kloudscript, Inc. (“Kloudscript”) is a
Delaware corporation that sells software consulting services
to pharmacies. (Compl. ¶ 5.) In 2018, Plaintiff received
five one-page faxes from Kloudscript. These faxes invited
Plaintiff to participate in two seminars (one held on June 2,
2018; the other on June 27, 2018) promoting services sold by
Kloudscript. (See Kloudscript Faxes, Exs. A-E to
Compl., Dkt. No. 1.)
brings a putative class action against Kloudscript and
various “John Does” who Plaintiff claims were
responsible for sending the faxes. Plaintiff asserts a claim
under § 227(b)(1)(C) of the TCPA, which prohibits the
use of any device “to send, to a telephone facsimile
machine, an unsolicited advertisement to a telephone
facsimile machine.” 47 U.S.C. § 227(b)(1)(C).
Plaintiff also asserts the following Illinois state law and
tort claims: violation of the Illinois Consumer Fraud Act
(ICFA), conversion, and trespass to chattels. Kloudscript
moves to dismiss the Complaint in its entirety because
Plaintiff lacks standing to proceed on its TCPA claim, has
plead only de minimis injuries for the tort claims,
and fails to state a claim under the ICFA.
moves to dismiss Plaintiff's suit for lack of standing,
an argument that falls under Federal Rule of Civil Procedure
12(b)(1). Jane Atlas and Margaret Schwalbach v. Village
of Glencoe, No. 19 C 3962, 2019 WL 6117579, at *2 (N.D.
Ill. Nov. 18, 2019). The party invoking federal jurisdiction
bears the burden of establishing standing. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Kloudscript brings a facial challenge to Plaintiff's
federal jurisdiction, as it claims that the allegations in
Plaintiff's Complaint, even if true, are insufficient to
establish standing. Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 444 (7th Cir.
2009). Facial challenges require only that the Court look to
the Complaint to see if Plaintiff has sufficiently alleged a
basis of subject matter jurisdiction. Id. at 443.
Allegations in the Complaint are taken as true for such a
motion. Id. at 444.
de minimis challenge standard falls under Rule
12(b)(6), which requires courts to dismiss complaints that
fail to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). Under Rule 8(a)(2), a complaint must
include “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The short and plain statement under
Rule 8(a)(2) must “give the defendant fair notice of
what the claim is and the grounds upon which it rests.”
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). A “complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
determining the sufficiency of a complaint under the
plausibility standard, courts must “accept all
well-pleaded facts as true and draw reasonable inferences in
the plaintiffs' favor.” Roberts v. City of
Chicago, 817 F.3d 561, 564 (7th Cir. 2016). When ruling
on motions to dismiss, courts may also consider documents
attached to the pleadings without converting the motion to
dismiss into a motion for summary judgment, as long as the
documents are referred to in the complaint and central to the
plaintiff's claims. See Adams v. City of
Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014);
TCPA and Standing
establish standing, a plaintiff must allege an injury in fact
that is traceable to the defendant's conduct and
redressable by a favorable judicial decision. Lujan,
504 U.S. at 560-61. These requirements are rooted in Article
III, which limits a federal court's authority to the
resolution of “cases” or
“controversies.” Casillas v. Madison Ave.
Assocs., Inc., 926 F.3d 329, 333 (7th Cir. 2019).
Kloudscript contends that Plaintiff has not met the
injury-in-fact requirement. An “injury in fact”
is “an invasion of a legally protected interest which
is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.”
Lujan, 504 U.S. at 560. Article III standing
“requires a concrete injury even in the context of a
statutory violation.” Spokeo, Inc. v. Robins,
136 S.Ct. 1540, 1549 (2016). An alleged harm must be
“concrete, ” not “abstract.”
Id. at 1548.
urges that Plaintiff's injury is insufficiently concrete,
particularized, actual, and imminent to constitute an
injury-in-fact. Plaintiff's asserted injury is that
Kloudscript's unsolicited faxes deprived Plaintiff of its
ink, toner, the use of its fax machine, and the time it spent
identifying the source and purpose of the fax. (See Compl.
¶¶ 2, 25.) The Seventh Circuit, in Craftwood
II, Inc. v. Generac Power Sys., Inc., 920 F.3d 479 (7th
Cir. 2019), recently confirmed that such injuries are
sufficient under Spokeo:
Plaintiffs allege that they received unsolicited fax ads,
causing at least two kinds of injury: printing the faxes used
paper and toner, which are costly, and the need to read the
incoming faxes diverted the time of one or more employees
from the businesses' profitable endeavors. These are
concrete rather than abstract losses. The injuries may
have been slight, but an “identifiable trifle”
suffices. Plaintiffs' injuries were caused by the
defendants' faxed ads and may be redressed by an award of
damages. We have resolved dozens of fax-ad suits on the
merits without suspecting that we were violating Article III
of the Constitution. This suit is no more constitutionally
suspect than they. Whether it is good public policy to use
the cumbersome and costly process of adjudication to resolve
disputes about annoying fax ads is for Congress to decide.
Craftwood II, Inc. v. Generac Power Sys., Inc., 920
F.3d 479, 481 (7th Cir. 2019) (internal citations omitted)
(emphasis added). The Ninth Circuit has held similarly.
See Van Patten v. Vertical Fitness Group, LLC, 847
F.3d 1037, 1043 (9th Cir. 2017) (plaintiff's receipt of
unsolicited text messages was sufficient harm to confer
standing, because “[u]nsolicited telemarketing phone
calls or text messages, by their nature, invade the privacy
and disturb the solitude of their recipients” such that
a “plaintiff alleging a violation under the TCPA