Hanley v. Green Tree Servicing, LLC, 12 C 4158.

• Decision Date: 07 June 2013
• Docket Number: No. 12 C 4158.,12 C 4158.
• Citation: 934 F.Supp.2d 977
• Parties: Gary HANLEY, on behalf of himself and others similarly situated, Plaintiff, v. GREEN TREE SERVICING, LLC, Defendant.
• Court: U.S. District Court — Northern District of Illinois

934 F.Supp.2d 977

Gary HANLEY, on behalf of himself and others similarly situated, Plaintiff,

v.GREEN TREE SERVICING, LLC, Defendant.

No. 12 C 4158.

United States District Court,

N.D. Illinois,

Eastern Division.

March 21, 2013.

Order On Reconsideration June 7, 2013.

Alexander Holmes Burke, Burke Law Offices, LLC, Chicago, IL, for Plaintiff.

James Dominick Adducci, Marshall Lee Blankenship, Adducci, Dorf, Lehner, Mitchell & Blankenship, P.C., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Gary Hanley brings this putative class action against Green Tree Servicing, LLC, (“Green Tree”) seeking relief for alleged violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227. (R. 1, Compl. ¶ 1.) Presently before the Court is Green Tree's motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 17, Def.'s Mot.) For the reasons set forth herein, Green Tree's motion is granted.

RELEVANT FACTS

Hanley is a homeowner who resides in this judicial District. (R. 1, Compl. ¶ 4.) Green Tree is the servicer of the mortgage on Hanley's home. ( Id. ¶ 5.) Hanley stipulates that his cellular telephone number is 630–xxx–5690. ( Id. ¶ 4.) Hanley alleges that “Defendant called Plaintiff's cellular telephone on multiple occasions over the past four years using an automatic telephone dialing system [ (“ATDS”) ] and/or an artificial or prerecorded voice.” ( Id. ¶ 7.) Hanley also alleges that Green Tree made these calls “after plaintiff demanded that the calls stop.” ( Id.) Hanley further alleges that these acts were done in violation of the Telephone Consumer Protection Act of 1991 (“TCPA” or the “Act”), 47 U.S.C. § 227. ( Id. ¶ 1.) This is the entirety of the facts pleaded in Hanley's complaint.

PROCEDURAL HISTORY

On May 29, 2012, Hanley commenced this cause of action by filing a complaint with this Court on behalf of himself and others similarly situated. (R. 1, Compl.) Hanley also requested that the Court certify a class of plaintiffs comprised of the people in this District who received calls through Green Tree's ATDS after demanding that such calls stop. ( Id. ¶ 14.) Hanley alleges one count against Green Tree. ( Id. ¶¶ 9–13.) In Count I of Hanley's complaint he claims that Green Tree violated the TCPA, which prohibits the use of an ATDS or artificial or prerecorded voice to call any cellular telephone, by using such a device to call Hanley and putative class members after they demanded that the calls stop. ( Id. ¶¶ 6, 7, 10.) Hanley claims that Green Tree ignored his demand that the calls cease, allegedly in violation of the TCPA as stated in 47 U.S.C. § 227(b). ( Id. ¶ 10.)

Hanley and putative class members seek relief in four forms: first, they seek statutory damages of $500 per violation of the Act and treble damages ($1,500) if any given violation of the Act is proven to be willful; second, they seek a permanent injunction against Green Tree enjoining it from calling their telephone numbers using an ATDS; third, they seek a declaration that Green Tree used an ATDS to call Hanley and putative class members in violation of the TCPA; and finally, they seek any other relief that the Court finds “just and proper.” ( Id. ¶ 21.) On July 16, 2012, the parties entered into a joint stipulation requesting that the motion for class certification be withdrawn without prejudice in order to allow more time for discovery. (R. 16, J. Stip.)

On July 18, 2012, in response to Hanley's complaint, Green Tree filed the instant motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 17, Def.'s Mot.) Green Tree argues that Hanley has failed to state a plausible entitlement to relief under the governing pleading standards, and in particular that Hanley has not alleged or establishedthat Green Tree lacked consent to make the prerecorded phone calls under the TCPA. (R. 22, Def.'s Mem. at 1.) Additionally, Green Tree argues that Hanley states no basis upon which treble damages can be awarded. ( Id.)

On August 21, 2012, Hanley filed a response to Green Tree's motion to dismiss. (R. 25, Pl.'s Resp.) Hanley first contends that in a TCPA case proving prior express consent to calls by an ATDS is an affirmative defense that a defendant must prove and not an element of a plaintiff's prima facia claim under the Act. ( Id.) Hanley also argues that he is only required to plead general facts as to the state of mind of Green Tree to recover treble damages; in this case, negligent, willful, or knowing. ( Id.)

On October 29, 2012, Hanley moved to submit additional authority to the Court, (R. 35, Pl.'s Mot. Add'l Authority I), which the Court granted on November 8, 2012, (R. 38, Min. Entry). In particular, Hanley wanted to draw the Court's attention to a then-recently decided opinion of the Ninth Circuit Court of Appeals, Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir.2012). (R. 35, Pl.'s Mot. Add'l Authority I.) Green Tree responded to Hanley's motion by arguing the merits of why Chesbro is inapposite to the case at hand. (R. 39, Def.'s Resp. to Pl's Mot. Add'l Authority I.)

On December 5, 2012, Hanley again moved for leave to submit additional authority, (R. 40, Pl.'s Mot. Add'l Authority II), which the Court granted on December 11, 2012, (R. 43, Min. Entry). In this motion Hanley asked the Court to take notice of the Federal Communication Commission's (the “FCC”) declaratory ruling in In re Rules and Regulations Implementing the Tel. Consumer Protection Act of 1991, Declaratory Ruling as to Petition of SoundBite Communications, Inc., CG Docket No. 20–278 (Nov. 29, 2012) (“ SoundBite Ruling ”). (R. 40, Pl.'s Mot. Add'l Authority II.) Green Tree responded to Hanley's motion on December 10, 2012, arguing that the SoundBite Ruling does not apply to this case. (R. 42, Def.'s Resp. to Pl's Mot. Add'l Authority II.) The Court took Green Tree's response under advisement when it granted Hanley leave to file this additional authority. (R. 43, Min. Entry.)

Presently before the Court is Green Tree's Rule 12(b)(6) motion to dismiss Hanley's complaint for failure to state a claim upon which relief can be granted. (R. 17, Def.'s Mot.)

LEGAL STANDARD

The purpose of a Rule 12(b)(6) motion is not to decide or rule on the merits of the case at bar; rather a Rule 12(b)(6) motion tests only the legal sufficiency of the complaint, Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir.1990), “to state a claim upon which relief may be granted,” Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009); see also Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir.2007). Because a motion to dismiss tests the legal sufficiency of a pleading, when considering a Rule 12(b)(6) motion to dismiss the Court construes the complaint in the light most favorable to the plaintiff, entitles all of the well-pleaded factual allegations in the plaintiff's complaint to the assumption of truth, and draws all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 680, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam); Ill., ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 618, 123 S.Ct. 1829, 155 L.Ed.2d 793 (2003); Graczyk v. W. Publ'g Co., 660 F.3d 275, 279 (7th Cir.2011). However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (internal quotation marks omitted)). “Iqbal clarified ... [that] although the complaint's factual allegations are accepted as true at the pleading stage, allegations in the form of legal conclusions are insufficient to survive a Rule 12(b)(6) motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir.2012) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.) Thus, on a motion to dismiss “legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to [the] presumption of truth.” McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir.2011) (citing Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).

The Court begins with the text of Rule 8 of the Federal Rules of Civil Procedure, which sets forth the “general rules of pleading” claims in federal court. Fed.R.Civ.P. 8. Rule 8 states in relevant part: “A pleading that states a claim for relief must contain: ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Interpreting Rule 8, the Supreme Court has held that “[d]etailed factual allegations” are not required, but the plaintiff must allege facts that, when “accepted as true ... state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal quotation marks omitted). If the factual allegations are well-pleaded, the Court assumes their veracity and then proceeds to determine whether they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678, 129 S.Ct. 1937.

The Twombly/Iqbal “plausibility” determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937. “The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and...