Thrasher–Lyon v. Ill. Farmers Ins. Co.

861 F.Supp.2d 898

Melissa THRASHER–LYON, on behalf of herself and a class of others similarly situated, Plaintiffs,

v.ILLINOIS FARMERS INSURANCE COMPANY and CCS Commercial LLC d/b/a Credit Collection Services Commercial, Defendants.

No. 11 C 04473.

United States District Court,

N.D. Illinois,

Eastern Division.

March 20, 2012.

Michael I. Kanovitz, Anand Swaminathan, Arthur R. Loevy, Jonathan I. Loevy, Loevy & Loevy, Chicago, IL, for Plaintiffs.

Randall Allan Hack, Brian Ignatius Hays, Nathan W. Lamb, Locke Lord Bissell & Liddell LLP, David M. Schultz, Clifford E. Yuknis, Matthew Thomas Glavin, Hinshaw & Culbertson, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Melissa Thrasher–Lyon (“Plaintiff”), brings this putative class action pursuant to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the Illinois Automatic Telephone Dialers Act (“ITA”), 815 Ill. Comp. Stat. 305/1 et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 Ill. Comp. Stat. 505/1 et seq., against Illinois Fanners Insurance Company (“Fanners”) and CCS Commercial LLC, d/b/a Credit Collection Services Commercial (“CCS”), (collectively, “Defendants”). (R. 1, Compl. at 1.) Presently before the Court are Defendants' motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (R. 21, CCS's Mot.; R. 25, Farmers' Mot.) For the reasons discussed below, CCS's motion to dismiss is denied in part and granted in part, and Farmers' motion to dismiss is granted.

RELEVANT FACTS

On April 8, 2011, while riding her bicycle, Plaintiff was involved in an accident with a motorist at the corner of Racine Avenue and Belmont Avenue in Chicago, Illinois. (R. 1, Compl. ¶ 6.) According to Plaintiff, the motorist suffered no injuries, and there was only minor damage to the motorist's vehicle. ( Id.) Plaintiff suffered minor physical injuries. ( Id.) The motorist was insured by Farmers. ( Id. ¶ 7.)

On April 11, 2011, Farmers sent Plaintiff a letter stating that Plaintiff “was responsible for the damages in the amount of $3,240.19” and characterizing $3,240.19 as the “Amount Owed.” ( Id. ¶ 8a.) The letter threatened to take “further action” against Plaintiff if she did not pay. ( Id.) On May 2, 2011, Farmers sent Plaintiff a second letter, again characterizing $3,240.19 as the “Amount Owed,” threatening to take “further action” if Plaintiff failed to pay, and stating that a failure to pay would result in the claim being forwarded to a collection agency or attorney. ( Id. ¶ 8b.) On May 11, 2011, Farmers sent Plaintiff a third letter similar to the April 11, 2011 letter. ( Id. ¶ 8c.) According to Plaintiff, the $3,240.19 Farmers claimed Plaintiff owed was subject to dispute. ( Id. ¶ 9.)

A little over one month after the accident, on May 16, 2011, CCS sent Plaintiff a “WARNING NOTICE” asserting that Farmers had subrogation rights for $3,240.19. ( Id. ¶ 10a.) The notice stated that the matter had been referred to CCS “for recovery,” threatened that a failure to pay $3,240.19 “could result in a law suit [sic] being filed against [Plaintiff] and/or license suspension,” and included a box stating, “PAY IMMEDIATELY, $3,240.19.” ( Id.) The notice further asserted that Farmers had paid the $3,240.19. ( Id. ¶ 11.) According to Plaintiff, Farmers only paid $740.19 because the motorist's policy included a $2,500 deductible. ( Id.) On June 6, 2011, CCS sent Plaintiff another “WARNING NOTICE” again asserting that Farmers had subrogation rights for $3,240.19, stating that the matter had been referred to CCS for recovery, and threatening that failure to pay could result in a lawsuit or license suspension. ( Id. ¶ 10b.) The June 6, 2011 letter also contained a box stating, “PAY IMMEDIATELY, $3,240.19.” ( Id.) Both “WARNING NOTICES” directed Plaintiff to make a payment at the following website: “www. warning notice. com.” ( Id. ¶ 10.)

On June 27, 2011, Plaintiff alleges that she received a “SETTLEMENT NOTICE” notifying Plaintiff that if she paid a “reduced amount,” CCS would treat the claim for $3,240.19 as “settled-in-full.” ( Id. ¶ 13.) This letter referenced the following website: “www. settlement notice. com.” ( Id. ¶ 14.)

In addition to the letters, Plaintiff avers that she received a series of telephone calls on her cellular telephone from CCS. ( Id. ¶¶ 16–17.) According to Plaintiff, CCS placed the calls from an automatic telephone dialing system, and when Plaintiff was unable to answer the calls, CCS left a voicemail message on her phone using a machine or prerecorded voice. ( Id. ¶ 16.) When Plaintiff was able to answer her phone, “there was silence; [and] no person was waiting on the other end.” ( Id.) Finally, Plaintiff alleges that she never consented for CCS to call her at her cellular telephone number. ( Id. ¶ 17.)

PROCEDURAL HISTORY

Plaintiff initiated this action on July 1, 2011. (R. 1, Compl.) In her complaint, Plaintiff alleges multiple counts against CCS and Farmers. Count I is a TCPA claim asserted against CCS. ( Id. ¶¶ 45–48.) In Count II Plaintiff alleges that CCS violated the ITA. ( Id. ¶¶ 49–50.) Counts III and IV are ICFA claims asserted against CCS and Farmers, respectively. ( Id. ¶¶ 51–62.)

On August 25, 2011, CCS filed a motion to dismiss Plaintiffs complaint pursuant to Rule 12(b)(6). (R. 21, CCS's Mot.) That same day, Fanners filed a motion to dismiss Plaintiff's complaint under Rules 12(b)(1) and 12(b)(6). (R. 25, Farmers' Mot.) On August 30, 2011, CCS sought leave to supplement its memorandum in support of its motion to dismiss, (R. 30, CCS's Mot. Supp.), which the Court granted on August 31, 2011. (R. 32, Min. Entry.)

In its motion to dismiss, CCS seeks dismissal of Plaintiff's TCPA, ITA, and ICFA claims against it for failure to state a claim and because Plaintiff lacks standing to bring her ICFA claim. (R. 21, CCS's Mot. ¶ 2.) Farmers seeks dismissal of Plaintiff s ICFA claim against it for the same reasons. (R. 25, Farmers' Mot. ¶ 2.)

LEGAL STANDARDS

A motion to dismiss pursuant to Rule 12(b)(1) asks the court to dismiss an action over which it allegedly lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The party asserting jurisdiction bears the burden of proof. See Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 913 (7th Cir.2009). All reasonable inferences are drawn in favor of the plaintiff, and all well-pleaded allegations are accepted as true. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999). Additionally, when considering a motion to dismiss under Rule 12(b)(1), a court may look beyond the allegations of the complaint and may consider other submitted evidence. Johnson v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir.2003); Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993).

A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint 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). When reviewing a motion to dismiss, the Court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the non-movant's favor. Id. Pursuant to Rule 8(a)(2), a complaint must contain “a ‘short and plain statement of the claim showing that the pleader is entitled to relief,’ sufficient to provide the defendant with ‘fair notice’ of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008) (quoting Fed.R.Civ.P. 8(a)(2) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal citations omitted).

Finally, affirmative defenses are generally not an appropriate grounds for dismissal at the complaint stage because plaintiffs are not required to plead facts in the complaint to anticipate and defeat affirmative defenses. United States v. Lewis, 411 F.3d 838, 842 (7th Cir.2005) (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)); see also Indep. Trust Corp. v. Stewart Info. Serv. Corp., 665 F.3d 930, 935 (7th Cir.2012). Nonetheless, where a plaintiff's complaint “sets out all of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.” Indep. Trust Corp., 665 F.3d at 935 (citing Brooks v. Ross, 578 F.3d 574, 579 (7th Cir.2009)).

ANALYSIS

I. Count I: Plaintiff's TCPA claim against CCS

CCS first argues that Plaintiff's TCPA claim should be dismissed for failure to state a claim. The TCPA and its implementing rules and regulations make it unlawful “to make any call (other than a call ... 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 ... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii); see also47 C.F.R. § 64.1200(a)(1)(iii). The TCPA provides for a private right of action, based on violations of the TCPA or its regulations, “to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater[.]” 47 U.S.C. § 227(b)(3)(B). To state a TCPA cause of action, a plaintiff must allege: (1) that a call was made; (2) using an automatic telephone dialing system or artificial or prerecorded voice; (3) the number called was assigned to cellular telephone service; and (4) the call was not made with the prior express consent of the recipient. See Pimental v. Google Inc., No. 11–2585, 2012 WL 691784, at *2 (N.D.Cal. Mar. 2, 2012).

CCS...