Mosley v. General Revenue Corporation

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

BONNIE MOSLEY, )

)

Plaintiff, )

)

v. ) Civil Action No. 1:20-cv-01012-JES-JEH

)

GENERAL REVENUE CORPORATION, )

)

Defendant. )

ORDER AND OPINION

This matter is now before the Court on Defendant General Revenue Corporation’s

(“GRC”) Motion to Dismiss in Part (Doc. 10) pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff

Bonnie Mosley filed a Response in Opposition to the Motion to Dismiss (Doc. 12). For the

following reasons GRC’s Motion to Dismiss in Part is GRANTED.

BACKGROUND

For the purposes of resolving this Motion, the Court takes the following factual

allegations from Plaintiff’s Complaint as true. The Plaintiff filed this case on January 8th, 2020

under the Telephone Consumer Protection Act (“TCPA”) and the Illinois Automatic Telephone

Dialers Act (“ATDA”). Doc. 1, at 1. The Plaintiff alleges that GRC contacted her cell phone

multiple times with prerecorded messages and “with an automated or predictive dialing system.”

Id. at 5. Plaintiff claims GRC is a debt collection company. Id. at 2. Plaintiff asserts, “[w]hen

Plaintiff did not answer the calls, GRC left a voice message. Sometimes the message consisted of

‘dead air,’ which is indicia that the calls were being placed with an automated or predictive

dialing system.” Id. at 5. Plaintiff alleges that GRC threatened legal action over alleged debts

through these pre-recorded calls, though Plaintiff has no knowledge of prior debt to GRC. Id. at

4. Plaintiff also asserts that she never gave consent for the calls and expressly instructed GRC to

stop contacting her. Id. at 1, 5.

LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) challenges whether a complaint

sufficiently states a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The

Court accepts well-pleaded allegations in a complaint as true and draws all permissible

inferences in favor of the plaintiff. See Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639

(7th Cir. 2015). To survive a motion to dismiss, the complaint must describe the claim in

sufficient detail to put defendants on notice as to the nature of the claim and its bases, and it must

plausibly suggest that the plaintiff has a right to relief. Bell Atlantic Corporation v. Twombly, 550

U.S. 544, 555 (2007). A complaint need not allege specific facts, but it may not rest entirely on

conclusory statements or empty recitations of the elements of the cause of action. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). The allegations “must be enough to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555.

DISCUSSION

Plaintiff does not oppose GRC’s request to dismiss the claims asserted under Illinois’

Automatic Telephone Dialers Act. Doc. 12, at 1. Therefore, the only issue remaining is GRC’s

Motion to Dismiss Plaintiff’s claim under the Telephone Consumer Protection Act (“TCPA”) to

the extent it is based on an alleged violation of the prohibition against calls to cellular telephones

using an automatic telephone dialing system (“ATDS”) without consent.1

GRC claims Plaintiff failed to properly allege GRC used an ATDS. Doc. 11, at 15. GRC

1 Mosley also seeks relief under the TCPA based on an alleged violation of the separate prohibition against calls

using a prerecorded or automated voice message without consent. GRC denies that it violated this prohibition, but it

does not seek dismissal of Mosley’s claim on that basis in the instant Motion. See Doc. 11, at 1 n.1.

points to a recent opinion from the Seventh Circuit Court of Appeals that examined the statutory

definition of ATDS and clarified how courts should apply this definition. See Gadelhak v. AT&T

Services, Inc., 950 F.3d 458 (7th Cir. 2020). GRC contends Plaintiff did not plausibly allege

GRC used a system which “has the capacity to randomly or sequentially generate telephone

numbers.” Doc. 11, at 13. GRC argues that because Plaintiff alleges it is a debt collection

company, it is not plausible that the company would use a random number system because

“companies engaged in debt collection call specific individuals, at specific numbers, about

specific debts, not random individuals at random numbers.” Id.

Plaintiff claims she met her burden concerning the ATDS. Doc. 12, at 1-2. She claims that

“she expressly and repeatedly alleges that GRC made the calls to her and the other [putative]

class members using an ATDS.” Id. at 4. Plaintiff asserts that the type of technical knowledge

GRC alleges is necessary requires fact finding later in the case. Id. at 8. She goes on to clarify it

is not just the method used to contact her, but rather the capabilities of the machine as a whole

that determines if the machine is an ATDS or not. Id. at 6.

The TCPA defines an ATDS as “equipment which has the capacity (A) to store or produce

telephone numbers to be called, using a random or sequential number generator; and (B) to dial

such numbers. 47 U.S.C. § 227(a)(1)(A)-(B). Recently, the Seventh Circuit clarified how this

statute ought to be interpreted: “[T]he phrase ‘using a random or sequential number generator’

modifies both ‘store’ and ‘produce,’ defining the means by which either task must be completed

for equipment to qualify as an ‘automatic telephone dialing system.’” Gadelhak, 950 F.3d at 464.

The court in Gadelhak concluded, “the capacity to generate random or sequential numbers is

necessary to the statutory definition.” Id. at 469. While Gadelhak provided useful guidance on

how to interpret the TCPA provisions on ATDS, it was an appeal from the district court’s grant of

summary judgment. The parties do not present any cases from the Seventh Circuit Court of

Appeals that address the pleading requirements for this TCPA violation, and this Court could not

find any on its own research.

Without any authoritative case law on the pleading standard for a violation of the

prohibition against ATDS, the Court turns to district courts within this Circuit that have

addressed the issue. It is important to note these cases were decided before the Gadelhak

decision was rendered. Some district courts have suggested a plaintiff need only allege the use of

an ATDS as defined in the statute, without alleging any supporting facts. See Torres v. Nat'l

Enter. Sys., No. 12 C 2267, 2012 U.S. Dist. LEXIS 110514, 2012 WL 3245520, at *3 (N.D. Ill.

Aug 7, 2012) ("[I]t would be virtually impossible, absent discovery, for any plaintiff to gather

sufficient evidence regarding the type of machine used."); Lozano v. Twentieth Century Fox Film

Corp., 702 F. Supp. 2d 999, 1010-11 (N.D. Ill. 2010) (finding allegations that defendants "used

'equipment with the capacity to store or produce telephone numbers to be called, using a random

or sequential number generator'" sufficient to survive a motion to dismiss). Other courts have

found it is too conclusory to plead the mere statutory definition of an ATDS without further

descriptive details. See Serban v. CarGurus, Inc., No. 16 C 2531, 2016 WL 4709077, at *3-4

(N.D. Ill. Sep. 8, 2016); Hanley v. Green Tree Servicing, LLC, 934 F. Supp. 2d 977, 983 (N.D. Ill.

2013). To withstand a motion to dismiss, those courts expected a plaintiff to present additional

facts supporting a reasonable inference that the defendant used an ATDS, such as a description of

the communication's generic, promotional content, or hearing a pause before being connected to

an operator. See Izsak v. Draftkings, Inc., 191 F. Supp. 3d 900, 904 (N.D. Ill. 2016); Oliver v.

DirecTV, LLC, No. 14 C 7794, 2015 U.S. Dist. LEXIS 47964, 2015 WL 1727251, at *3 (N.D. Ill.

Apr. 13, 2015).

Plaintiff cites Husain v. Bank of Am., N.A., which was decided by the district court one

day before the Seventh Circuit issued its Gadelhak opinion and also examines the statutory

definition of an ATDS. No. 18 cv 7646, 2020 WL 777293 (N.D. Ill. Feb. 18, 2020). In Husain,

the court stated,

[T]he difference between a predictive dialer and an ATDS is not readily

apparent to a recipient of an automated call. Such a determination requires

information about the technical details of the device that the Defendants

used to make the calls—information that the Plaintiffs lack prior to

discovery. Accordingly, Plaintiffs need not provide specific, technical

detail about the device at issue at the pleading stage.

Id. at *7. The court found that hearing a pause at the beginning of a call was enough to indicate

the defendant used an ATDS. Id. This Court agrees that generally no plaintiff ought to be held to

a standard that requires the plaintiff to plead technical information to which they could not have

pre-discovery. However, a pause alone may not always be sufficient to plausibly claim the

defendant was using an ATDS, especially if the business of the defendant is such that it would

not need a machine with random or sequential number generation capacities. The defendant in

Husain was a bank, whereas the Defendant in the instant case is allegedly a debt collection

company. Banks may intend to contact individuals with whom there is already a preexisting

relationship, such as a mortgagor, but banks may also intend to solicit clients through random

number generation. Thus, it is plausible that the bank’s telephone system might have the capacity

to use randomly or sequentially generated phone numbers.

This Court has ruled on pleading requirements for TCPA claims in the past. In Aguilar v.

State Farm Mut. Auto. Ins. Co., a pre-Gadelhak decision, this Court found the plaintiff had

established a plausible claim that the defendant used an ATDS and the defendant sought “to

address evidentiary issues that are premature” with its motion to dismiss. No. 1:16-cv-01211-

JES-JEH, 2017 WL 956327, at *5 (C.D. Ill. Mar. 10, 2017). The Court relied on a ruling by the

Federal Communications Commission (“FCC”), which has since been overturned, that defined

an ATDS as a device that can dial numbers without human intervention “regardless of whether

the numbers called are randomly or sequentially generated or come from calling lists.” Id.

(quoting 2012 FCC Ruling, 27 F.C.C. Rcd. at 15391, n.5). Before Gadelhak, the definition of an

ATDS was broader to include situations where the device dialed numbers from a list, not

necessarily a randomly or sequentially generated list. Since Gadelhak, the definition of an ATDS

has narrowed. Here, Plaintiff must plausibly allege GRC’s machine had the capacity to store or

generate random or sequential phone numbers.

Plaintiff claims she does not need to plausibly allege that GRC used a random or

sequential number generator in her case, but rather that GRC’s machine had the capacity to do

so. Doc. 12, at 6. The Court rejects the inference that a claim is plausible because a plaintiff

merely alleges the dialer system has the capacity to randomly or sequentially generate numbers,

without any factual basis for such allegations. If the Court were to adopt a standard that a

plaintiff need only allege that the defendant’s dialing system is capable of randomly or

sequentially generating numbers, without any basis to support the plausibility of the claim, it

would make huge swaths of otherwise innocuous phone calls at risk of litigation. Any machine

which calls others may have the capacity to dial a randomly or sequentially generated number,

especially with the growing sophistication of smartphones, which are undoubtably smarter now

than the best ATDS system when the statute in question was passed.

Plaintiff also states, “[m]ost courts in the Seventh Circuit correctly hold ‘plaintiffs need

only allege the use of an ATDS as defined in the statute, without supporting facts.’” Id. at 3

(citation omitted). As such, Plaintiff contends her TCPA claim is properly pleaded because she

alleged GRC used an ATDS multiple times throughout the Complaint. Id. This reasoning seems

contrary to the rationale behind Twombly and mischaracterizes the breadth of the debate in the

district courts. As discussed above, there is far from consensus on this issue among district courts

in the Seventh Circuit. See supra, at 4. Twombly sought to limit claimants to the plausible, not

just the possible. 550 U.S. at 570. This includes avoiding speculation as the basis of the claim.

Id. at 555. While the Plaintiff need not have advanced technical knowledge of the devices GRC

used, there still must be some basis in the pleading which raises the ATDS claim from

speculative to plausible. To claim that GRC might have been used a device that might have the

capacity to randomly or sequentially generate numbers is clearly speculation.

Plaintiff alleges GRC is a debt collection company. Doc. 1, at 2. GRC argues “[i]t is not

plausible to conclude that a company seeking to collect debts (as Mosley alleges GRC to be)

would use a system that randomly and sequentially generates phone numbers.” Doc. 11, at 13.

This Court agrees. While Plaintiff contends she never had any business nor contractual

relationship with GRC, it is not uncommon for companies to be in the business of purchasing

debts from or collecting debts on behalf of others. The fact that she did not acknowledge any

prior relationship does not make it more plausible that GRC would use a machine with the

capacity to randomly or sequentially store or generate phone numbers. Plaintiff offers no

plausible explanation why a debt collection company would need or use a machine which had

the capacity to dial or store randomly or sequentially generated numbers. It is far more likely that

a telemarketing company, bank, or other seller of goods would desire to have machines with the

capacity to dial randomly or sequentially generated numbers. With no other reason, such as the

nature of the company, to lean on for a plausibility argument, the fact that the device used might

have had the capability to use randomly generated number systems fails to be more than a

speculative possibility. For these reasons, the Court will dismiss Plaintiff’s TCPA claim to the

extent it is based on an alleged violation of the prohibition against calls using an ATDS.

CONCLUSION

For the reasons set forth above, General Revenue Corporation’s Motion to Dismiss in

Part (Doc. 10) is GRANTED.

Signed on this 20th day of July, 2020.

s/James E. Shadid_____________

James E. Shadid

United States District Judge