Poonja v. Kelly Servs.

MEMORANDUM OPINION AND ORDER

Robert M. Dow Jr. United States District Judge

For the reasons stated below, Defendant's motions to dismiss [12, 22] are both denied. Counsel are directed to confer and to file no later than October 15, 2021 a joint status report that includes a proposed case management plan consistent with this opinion and the Court's guidance on the staging of discovery, see p. 3, infra.

I. Factual Background

The impetus for Plaintiff's proposed class action complaint [1-1] is a single text message that Plaintiff unexpectedly received on November 21, 2019 [id. ¶ 14]. That text message, sent from the phone number 1-833-650-4026 at 11:38 a.m. stated as follows:

Immediate openings for warehouse associate/machine operator roles in Lake Zurich, IL. 1^st shift &amp 2^nd shifts available starting pay rate at $15/hr and up. If interested, please call us at 847-995-9350, email us at 2423@kellyservices.com, or text back

[Id. (screen shot of text message)]. At the bottom of the text was an additional message: “(Reply STOP to stop anytime)”. Id. Plaintiff alleges that Defendant advertises various job listings like the one quoted above for thousands of businesses nationwide in an effort to assist those businesses to fill open positions. Id. ¶ 12. Plaintiff infers from (a) the use of a dedicated 1-833 toll free

number, (b) the generic nature of the text message, and (c) the automated “STOP” and “text back” functionality that the text message he received was sent using an ATDS in violation of the TCPA. Id. ¶¶ 15-17.

On June 22, 2020, Plaintiff commenced this action in the Circuit Court of Cook County. Defendant removed the case to federal court and has filed two separate motions to dismiss Plaintiff's complaint. In its first motion [12], Defendant raises traditional arguments for dismissal under Federal Rule of Civil Procedure 12(b)(6). Specifically, Defendant contends that Plaintiff has not satisfied the basic requirements of notice pleading under Federal Rule of Civil Procedure 8, including that Plaintiff has not adequately pled that the text message in question was generated by an ATDS. Defendant also challenges Plaintiff's demand for treble damages based on alleged willful conduct and asks the Court to strike Plaintiff's class allegations as well. In its second motion [22], Defendant submits that the Court lacks subject matter jurisdiction on the basis of the Supreme Court's decision in Barr v. American Association of Political Consultants, 140 S.Ct. 2335 (2020), which invalidated the so-called “government debt exception” to the TCPA on First Amendment grounds but found the offending provision, added by Congress in 2015, to be severable from the statute as a whole, id. at 2353 (plurality opinion); see also id. at 2357 (Sotomayor, J., concurring in the judgment); id. at 2363 (Breyer, J., concurring in judgment with respect to severability and dissenting in part). According to Defendant, the presence of the government debt exception between 2015 and 2020 rendered the entire autodialer restriction in the TCPA unconstitutional and thus unenforceable today. [See 23, at 1, 13-15.]^[1]

For the reasons stated below, the Court does not find any of Defendant's arguments persuasive. Some are incorrect; others premature; but none justifies terminating any aspect of this lawsuit at this time. With that said, a single text is a thin basis upon which to launch full-blown discovery on a putative nationwide class action. Accordingly, the Court is inclined to stage discovery so that the parties can first discern whether (a) Defendant did in fact use an ATDS to send the text message in question and (b) how far and wide that message was sent-i.e., locally in the area where the job advertised would be performed, or across the nation, as Plaintiff suspects.

II. Legal Standard

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint typically must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the *** claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S at 555). In determining whether the complaint meets this standard, the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiff's favor. Killingsworth, 507 F.3d at 618.

In regard to motions under Rule 12(b)(1), “[w]hen ruling on a motion to dismiss for lack of subject matter jurisdiction, a district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” Twin City Fire Ins. Co. v. Law Off. of John S. Xydakis, P.C., 407 F.Supp.3d 771, 775 (N.D. Ill. 2019) (citations omitted). A court “may properly look beyond the jurisdictional allegations of the complaint and view

whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists, ” including by taking judicial notice of public records. Id. As the Sixth Circuit recently has observed, notwithstanding the styling of a motion as to dismiss as challenging the jurisdiction of a court, the motion may “more accurately be considered a Rule 12(b)(6) motion to dismiss for failure to state a claim” when “the right of the [plaintiffs] to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another.” Lindenbaum v. Realgy, LLC, --- F.4th ---, 2021 WL 4097320, at *2 (6th Cir. Sept. 9, 2021) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (quoting Bell v. Hood, 327 U.S. 678, 685 (1946)). That observation is on point here, for if Plaintiff's “arguments about the continuing vitality of the robocall restriction from 2015 to 2020 are correct, [he] is entitled to relief.” Id.

III. Discussion

A. Defendant's First Motion to Dismiss

This action arises under the Telephone Consumer Protection Act of 1991 (“TCPA”), which “proscribes abusive telemarketing practices by, among other things, imposing restrictions on making calls with an ‘automated telephone dialing system.” The TCPA defines an “automated telephone dialing system” (“ATDS”) as a piece of equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator, ” and to dial those numbers. 47 U.S.C. § 227(a)(1). The TCPA makes it unlawful for any person to place a call or text using an ATDS to a cellular telephone without that individual's express consent. 47 U.S.C. § 227(b)(1)(A)(iii); see also Blow v. Bijora, Inc., 855 F.3d 793, 798 (7th Cir. 2017) (“text messages to a cellular phone constitute ‘calls'” under the TCPA). Breaking down the statute's prohibition, to state a cause of action under the TCPA, a plaintiff must allege (i) a call was made

or a text was sent; (ii) the caller/sender used an ATDS; (iii) the number called was assigned to a cellular telephone service; and (iv) the caller did not have the recipient's prior express consent.

Earlier this year, the Supreme Court resolved a circuit split “regarding whether an autodialer must have the capacity to generate random or sequential phone numbers.” Facebook, Inc. v. Duguid, 141 S.Ct. 1163, 1168-69 (2021). The Court agreed with the Seventh Circuit (see Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 468 (7th Cir. 2020)) in holding that to qualify as an “automatic telephone dialing system” (“ATDS”), “a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” Facebook, 141 S.Ct. at 1173.

1. The Sufficiency of the Complaint's Allegations

The allegations of the complaint - including a screen shot of the text in question - plainly show that a text was sent to what Plaintiff alleges is his cell phone number. The screen shot reveals the date, time, and number from which the text was sent. Plaintiff also alleges that he did not give his prior express consent to receiving texts or calls from Defendant. The only pleading question requiring detailed examination is whether Plaintiff has adequately alleged that Defendant used an ATDS to send the text.

Defendant claims that Plaintiff's allegations regarding an ATDS “are barebones and amount to rank speculation.” [13, at 8.] But, as many judges in this District have recognized, “it is unclear how plaintiffs can plead the technical details of the system used by a defendant when the defendant has that information.” Klueh v. Paul Vallas for All Chi., 2020 WL 4934975, at *6 (N.D. Ill. Aug. 24, 2020); see also Czerniak v. Servis One, Inc., 2017 WL 1196886, at *3 (N.D. Ill. Mar. 31, 2017) (“discovery is typically necessary for the plaintiff to obtain the facts necessary to demonstrate an autodialer was used”); Torres v. Nat'l Enterprise Sys., Inc., 2012 WL 3245520,

at *3 (N.D. Ill. Aug. 7, 2012) (noting that it is “virtually impossible, absent discovery, for any plaintiff to gather sufficient evidence regarding the type of machine used for a communication”). Still, post-Gadelhak, some factual details must be alleged to...