Franklin v. Depaul Univ.

• Decision Date: 28 July 2017
• Docket Number: 16 C 8612
• Parties: RICKY R. FRANKLIN, Plaintiff, v. DEPAUL UNIVERSITY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

RICKY R. FRANKLIN, Plaintiff, v. DEPAUL UNIVERSITY, Defendant.

16 C 8612

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

July 28, 2017

Judge John Z. Lee

MEMORANDUM OPINION AND ORDER

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.

Analysis

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 UnitedChurch 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 Depositwith 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, theplaintiff 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 suggest that violation of [the TCPA] is sufficient to constitute a concrete, de facto injury."); Mey, 193 F. Supp. 3d at 644-50. Accordingly, even post-Spokeo, the Court concludes that Franklin has Article III standing to bring this suit.

Additionally, the face of Franklin's complaint shows that he has statutory standing. The TCPA states that it is unlawful "to make 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." 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA also grants the called party the right to sue any person violating this provision. Id. § 227(b)(3). Franklin alleges that DePaul violated the TCPA by placing multiple "calls"² to him in the form of text messages using an automatic telephone dialing system. Compl. ¶¶ 20, 24.

Comparing the text of the TCPA with Franklin's allegations, the Court finds that Franklin states sufficient facts to show that his interests fall within the zone of interests protected by the TCPA, and he accordingly has statutory standing to assert a TCPA claim. See D.G. ex rel. Tang, 791 F. Supp. 2d at 625 (holding that plaintiff had statutory standing to bring TCPA claim where he allegedly received unsolicited calls to his personal phone from defendant). For all of the above reasons, Franklin has both constitutional and statutory standing to bring this case.

II. Rule 12(b)(6)

A motion under Rule 12(b)(6) challenges the sufficiency of the plaintiff's complaint. Christensen v. Cty. of Boone, 483 F.3d 454, 457 (7th Cir. 2007). The federal notice pleading standard requires a complaint to "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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2009)). A complaint 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,...