DocketNumber： No. 14-cv-07952
Judges： Wood
Filed Date： 6/13/2016
Status： Precedential
Modified Date： 11/7/2024
MEMORANDUM OPINION AND ORDER
Plaintiff David Izsak brings this putative class action against Defendant DraftKings, Inc. (“DraftKings”), alleging that Draft-Kings sent him an unsolicited text message in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Izsak also asserts a claim for common law conversion. Before the Court is DraftKings’s motion to dismiss Izsak’s corrected class action complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 15.) For the reasons stated below, the motion is granted in part and denied in part.
BACKGROUND
As set forth in the complaint,
- On September 1, 2014, DraftKings sent an unsolicited text message to Izsak’s wireless telephone. (Id. ¶¶ 17-18,)
from, djjgll@yahoo.com: Come play DraftKings with me. Use my link and we’ll both get a bonus http://www. draftkings.com/r/GERONIMOll
(Compl. Ex. A, Dkt. No! 6-1.) The website referenced in the text message is registered by DraftKings. (Compl. ¶21, Dkt. No. 6.) The text message “from” field identifies the sender as “617-849-9834.” (Id. ¶ 19.) When that number is' called, the following message plays: “Hi, this automated message [is] from DraftKings. Please refer to the original message you received from this number.” (Id. ¶ 20.) Iz-sak alleges that DraftKings sent the same, or substantially the same, text message en masse to thousands of wireless telephone numbers using “equipment that had the capacity to store or produce telephone numbers to be called using .a random or sequential number generator, and to dial such numbers.” (Id. ¶¶ 22-23.) He further claims that the equipment sent the text messages simultaneously and without human intervention. (Id. ¶ 36.) According to Izsak, receipt of the text message utilized his wireless data, which made the data otherwise unusable and decreased the performance of his cellular phone. (Id. ¶ 43.) Izsak represents that, as a result, his device could no longer be used for any other purpose. (Id. ¶ 45.)
Izsak has filed a two-count' complaint based on DraftKings’s transmission of the
DISCUSSION
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While a complaint need not include detailed factual allegations, there “must be enough to raise a right to relief above the speculative level.” Id. at 555, 127 S.Ct. 1955. The plaintiff must “ ‘plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks and citation omitted). In- addition, “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.” Id. (internal citation omitted). Finally, this Court is “not obliged to ignore any facts set forth in the complaint that undermine the plaintiffs claim or to assign any weight to unsupported conclusions of law.” In the Matter of Wade, 969 F.2d 241, 250 (7th Cir.1992) (internal quotation marks and citation omitted).
I. Count I—Violation of the Telephone Consumer Protection Act
To plead a violation of the TCPA adequately, Izsak must allege that DraftKings utilized an ATDS to send the September 1, 2014 text message. See 4!7 U.S.C. § 227(b)(l)(A)(iii). 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). The Federal Communications Commission (“FCC”) has instructed that “the capacity to dial numbers without human intervention is -the basic function of an [ATDS.] ” Sterk v. Path, Inc., No. 13 CV 2330, 2014
As other" courts have recognized, the case law in this District is mixed as to the requirements for pleading a TCPA claim, particularly with respect to use of an ATDS. See, e.g., Johansen v. Vivant, Inc., No. 12 C 7159, 2012 WL 6590551, at *2-3 (N.D.Ill. Dec. 18, 2012); Schlotfeldt v. Wells Fargo Home Mortgage, Inc., No. 15 C 6656, 2016 WL 406341, at *5 (N.D.Ill. Feb. 3, 2016). Some cases have held, or at least suggested, that merely reciting the statutory definition of an ATDS is sufficient. See, e.g., Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1010-11 (N.D.Ill.2010); Torres v. Nat’l Enter. Sys., Inc., No. 12 C 2267, 2012 WL 3245520, at *3 (N.D.Ill. Aug. 7, 2012). Others have stated that more is required—that a plaintiff must allege additional facts giving rise to the reasonable inference that an ATDS was used. See, e.g., Ananthapadmanabhan v. BSI Fin. Servs., Inc., No. 15 C 5412, 2015 WL 8780579, at *4 (N.D.Ill. Dec. 15, 2015); Martin v. Direct Wines, Inc., No. 15 C 757, 2015 WL 4148704, at *2 (N.D.Ill. July 9, 2015); Abbas v. Selling Source, LLC, No. 09 CV 3413, 2009 WL 4884471, at *3 (N.D.Ill. Dec. 14, 2009).
This Court agrees with the view that where a fact—here, use of an ATDS— is itself an element of the claim, “it is not sufficient to recite that fact verbatim without other supporting details,” Ananthapadmanabhan, 2015 WL 8780579, at *4. Rather, a plaintiff must plead additional, independent facts that “suggest beyond the- speculative- level that Defendant actually used an ATDS and is liable under the TCPA.” Oliver v. DirecTV, LLC, No. 14-cv-7794, 2015 WL 1727251, at *3 (N.D.Ill. Apr. 13, 2015) (internal quotation marks and citations omitted). While a TCPA plaintiff should not be expected to plead details regarding the technical functionality of the alleged ATDS, the complaint must include at least some facts to support the conclusion that an ATDS was used. For example, a plaintiff could describe the promotional content or the generic, impersonal nature of the text message allegedly sent using an ATDS. A plaintiff might also allege that identical messages were sent to many potential customers at the same time. See, e.g., Sojka v. DirectBuy, Inc., 35 F.Supp.3d 996, 1003 (N.D.Ill.2014); Stickler v. Bijora, Inc., No. 11 CV 3468, 2012 WL 5386089, at *2 (N.D.Ill. Oct. 30, 2012); Abbas, 2009 WL 4884471, at *3.
Here, Izsak parrots the language of the TCPA, alleging that DraftKings sent the text messages at issue using equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers. But he then goes on to provide a screenshot of the text message he received and also to allege that DraftKings sent the same, or substantially the same, message to thousands of wireless telephone numbers. In addition, Izsak further alleges that, upon calling the number from which he received the text message, he heard the following prerecorded message: “Hi, this automated message [is] from DraftKings. Please refer to the original message you received from this number.” Do these additional factual allegations plausibly suggest that Draft-Kings used an ATDS to send the September 1, 2014 text message? The Court concludes that they do.
While Izsak received only one text message, cf. Smith v. Royal Bahamas Cruise Line, No. 14-cv-03462, 2016 WL 232425 (N.D.Ill, Jan. 20, 2016) (several automated calls) and Sojka, 35 F.Supp.3d 996 (multiple identical text messages), his allegation that the same message was sent en masse to thousands of wireless telephone numbers, which must be taken as true, points toward use of an ATDS. See Abbas, 2009 WL 4884471, at *3 (plaintiffs allegation that defendant sent mass transmissions of wireless spam to potential customers, together with other allegations, allowed the court to reasonably infer that an ATDS was used); Sojka, 35 F.Supp.3d at 1003 (the allegation that members of the putative class received the same messages, coupled with other allegations, led to the reasonable inference that the messages were sent using an ATDS). And although Draft-Kings takes the position that the contents of the September 1, 2014 text message demonstrate that it was personally sent by an.individual, a plausible alternative view is that the .generic nature of the message indicates it was actually sent from an institutional sender for marketing purposes and only crafted to appear personalized. See Abbas, 2009 WL 4884471, at *3.
Also supporting the inference that an ATDS was used is Izsak’s allegation that, upon calling the number from which he received the text message, he heard an automated message from DraftKings. See, e.g., Smith, 2016 WL 232425, at *4; Vance v. Bureau of Collection Recovery LLC, No. 10-cv-06324, 2011 WL 881550, at *3 (N.D.Ill. Mar. 11, 2011) (“even if Plaintiff were required to state the grounds for her suspicions, Plaintiff does just that—she alleges.-that she suspected that the phone calls that she received were automated because she heard a prerecorded voice when she answered.”), (internal quotation marks and citation omitted). Cf. Johansen, 2012 WL 6590551, at *3 (dismissing a TCPA claim where the plaintiff stated only that the defendant left prerecorded messages on his cell phone using an ATDS without providing any additional information about the messages received). Of course, the alleged TCPA violation here is the text message Izsak received, not the call during which he heard the prerecord
On the matter of human intervention, DraftKings argues that the text message itself, consisting of what it characterizes as a personalized message, illustrates that it required direct human involvement—presumably by the user of the email address “djjll@yahoo.com” and the internet handle “GERONIMOll.”- As DraftKings argues:
[A] person has to voluntarily sign up to play DraftKings; that person must subsequently provide his or her own email address and create a username; then that person must affirmatively identify a contact they want to invite to play with them; the person must provide a phone number to reach the invitee by text; and then the person must affirmatively send the invitation to play by text using the DraftKings mobile application.
(Def. Memo in Support of Mot. to Dismiss at 7, Dkt. No. 17.) In other words, “human intervention was present at every step.” (Id.) Thus, according to DraftKings, the contents of the text message contradict Izsak’s conclusory allegation that it was sent without any human intervention, which refutes his assertion that an ATDS was used and defeats his TCPA claim. But, as stated above, simply presenting the Court with an alternative version of events does not establish that Izsak has failed to state a claim. Just as Izsak’s allegations plausibly suggest that an ATDS was used, those same allegations—coupled with his assertion that DraftKings transmitted the message without human intervention—are sufficient to allow the Court to infer reasonably there was no human involvement. Just as discovery should reveal how Draft-Kings’s equipment functions in practice, so too should discovery illuminate whether individual action prompted the text message at issue.
DraftKings is correct that a number of district courts (although none in this Circuit) have held that a text message sent with human intervention disqualifies the equipment used as being an ATDS. But none of those cases controls here and each is easily distinguishable. Most were decided . at the summary judgment stage, presumably after fact discovery into the nature and functionality of the equipment used by each, of the defendants to send the text message or messages at issue. See Gragg v. Orange Cab Co., Inc., 995 F.Supp.2d 1189, 1194 (W.D.Wash.2014) (explaining that the defendant cab company’s computer program was able to send dispatch notifications only after the cab driver had physically pressed “accept”); Marks v. Crunch San Diego, LLC, 55 F.Supp.3d 1288, 1289 (S.D.Cal.2014) (detailing the methods by which phone numbers were inputted into the third-party web-based platform used by the defendant to send promotional text messages); Glauser v. GroupMe, Inc., No. C 11-2584 PJH, 2015 WL 475111, at *6 (N.D.Cal. Feb. 4, 2015) (finding " that the text messages at issue were sent to the plaintiff in response to an individual’s creation of a group using the defendant’s group messaging application). In the only case decided at the motion to dismiss stage, the plaintiffs own allegations made clear that the defendant’s messaging application could send, text messages only at the affirmative direction of a user of the application and only to recipients selected by the user. See McKenna v. WhisperText, No. 5:14-cv-00424-PSG,
In sum, while certain of Izsak’s allegations might be viewed as undermining his assertion that an ATDS was used to send the September 1, 2014 text message without any human intervention, the additional allegations in the complaint, taken together, are sufficient to allow the Court to reasonably infer that DraftKings sent Iz-sak a text message using equipment with some automated capacity. DraftKings should know if it sent marketing text messages utilizing an ATDS on the day in question. If it did not, it can simply deny the allegations; if there are questions as to whether it sent such text messages to.Iz-sak and the other purported class members, those can be addressed through discovery. But for now, Izsak has provided enough factual Support for the conclusion that an ATDS was used, and his allegations are therefore sufficient to state a claim under the TCPA.
Count II—Conversion
To establish a conversion claim under Illinois law, Izsak must show: “(1) a right to the property; (2) an absolute and unconditional right to the immediate possession of the property; (3) a demand for possession; and (4) that the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property.” Van Diest Supply Co. v. Shelby Cty. State Bank, 425 F.3d 437, 439 (7th Cir.2005) (citingCirrincione v. Johnson, 184 Ill.2d 109, 234 Ill.Dec. 455, 703 N.E.2d 67, 70 (Ill.1998)). As stated above, Izsak seeks an award of damages for conversion-based on the theory that, by sending text messages to his and the other purported class members’ wireless phones, DraftKings converted to its own use data under their wireless plans and “components of [their] wireless telephones.” (Compl. ¶ 40, Dkt. No 6.) Izsak claims that he and the other class members owned and had an unqualified right to the immediate possession of their phones and data and that DraftKings’s appropriation, which rendered the phones and data unusable or decreased their performance, was wrongful and without authorization.
In support of its motion to dismiss, DraftKings argues that the de minimis doctrine bars Izsak’s conversion claim because he has not and cannot plead any facts to establish that his receipt of a single text message caused anything more than de minimis damages. The doctrine of de minimis non curat lex, or “the law does not concern itself with trifles,” prevents collecting on claims where “the damages are just too small to warrant treatment in the judicial system.” Quality Mgmt. & Consulting Servs., Inc. v. SAR Orland Food Inc., No. 11 CV 06791, 2012 WL 2128327, at *1-2 (N.D.Ill. June 11, 2012).
Indeed, there appears to be no controlling Seventh Circuit precedent on this issue, and courts in this District have disagreed .regarding whether the damages arising from a limited number of unsolicited communications require application of the de minimis doctrine. Id. at *2. One line of cases relies on the de minimis doctrine to reject conversion claims
This Court' is persuaded by the reasoning of those cases that reject conversion claims such as the one asserted by Izsak. In fact, application of the de min-imis doctrine may be even more appropriate here, where the loss is similarly trivial but not nearly as concrete as the lost ink, toner, or paper at issue in the TCPA fax cases. The cost imposed, or the data lost, by the receipt of the alleged single unwanted text message—if there is any actual financial loss at all—-is no doubt miniscule.
Further, for the reasons aptly explained in a number of the cases cited above, the Court disagrees with the approach taken in the cases that have rejected application of the de minimis doctrine to bar similar conversion claims. First, some of those cases “aggregate the potential damages by considering class-wide damages,” which “puts the cart before the horse.” Quality Mgmt., 2012 WL 2128327, at *2 (internal citations omitted). Courts cannot consider the aggregate value of a putative class conversion claim unless the plaintiff presents a valid cause of action in his own right. In other words, “[cjumula-tive allegations of a putative class in a complaint cannot be used to prop up an otherwise trivial claim that is unable to stand on its own.” Stonecrafters, 633 F.Supp.2d at 614. See also G.M. Sign, 681 F.Supp.2d at 933 (“Plaintiffs conversion claim must be sufficient to stand alone, and the estimated damages for potential class members cannot be aggregated to assist Plaintiff in sufficiently pleading its claim”)
Second, while some cases have pointed to the availability of nominal damages for conversion claims, nominal damages and de minimis damages are two distinct concepts. Stonecrafters, 633 F.Supp.2d at 614; Quality Mgmt., 2012 WL 2128327, at *3. Nominal damages may be appropriate “when thebe is a violation of sufficient gravity, but significant damages cannot be proved with sufficient specificity.” Quality Mgmt, 2012 WL 2128327, at *3 (internal citation omitted). In contrast, the de minimis doctrine applies to “claims in which the plaintiff has suffered no more than negligible damages from the beginning.” Stonecrafters, 633 F.Supp.2d at 615. Thus, where there is no particular difficulty quantifying the damages in an unsolicited communication case, a court should not consider nominal damages. See Quality Mgmt, 2012 WL 2128327, at *3. Here, it is possible to quantify the cost of, or the amount of data used for, a single text message, such that nominal damages are not- appropriate. In other words, “[wjhat applies here are de minimis damages, not nominal damages.” Id. As such, Izsak’s conversion claim is barred by the de minimis doctrine and Count II is dismissed. See id. See also Stonecrafters, 633 F.Supp.2d at 615 (“Because plaintiffs claim for conversion of paper and toner was insufficient at its inception to merit a judgment, the de minimis doctrine applies in this case, and no amount of damages, nominal or otherwise, would be appropriate.”).
CONCLUSION
For the reasons stated above, Draft-Kings’s motion to dismiss (Dkt. No. 15) is GRANTED IN PART and DENIED IN PART. Izsak has adequately pleaded a TCPA claim and Count I of the complaint therefore survives. Because Izsak’s claim for conversion is barred by the de minimis doctrine, Count II is dismissed without prejudice.
. For purposes of deciding the instant motion, the Court accepts the allegations in the complaint as true and draws all permissible inferences in Izsak’s favor. See, e.g., Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir.2011).
. Izsak notes that he never consented to, requested, or otherwise desired or permitted DraftKings to send text messages to his wireless phone. (Compl. ¶ 24, Dkt. No. 6.)
. DraftKings has not disputed that a text message qualifies as a call. Therefore, at this stage in the proceedings, the Court need not reach that issue. The Court notes, however, that other courts have agreed with the Federal Communications Commission’s interpretation that § 227 applies to text messages. See, e.g., Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1009 (N.D.Ill.2010) (“the Court agrees with the FCC’s interpretation that § 227 of the TCPA applies to text messages”); Sojka v. DirectBuy, Inc., 35 F.Supp.3d 996, 1000 (N.D.Ill.2014) (“A text message is a ‘call’ within the meaning of the TCPA.”) (internal citations omitted).
. De minimis non curat lex is a state and federal common law doctrine. Mitchell v. JCG Indus., Inc., 745 F.3d 837, 844 (7th Cir.2014).
. In other cases, courts have declined to apply tire de minimis doctrine to bar similar conversion claims. See, e.g., Centerline Equip. Corp. v. Banner Personnel Serv., Inc., 545 F.Supp.2d 768, 782 (N.D.Ill.2008) ("The court., .declines to assume, at the pleading stage, that the alleged deprivation is de min-imis. An individual claim for the loss of one sheet of paper might well be niggling, but a class claim could be more substantial, and class treatment is regularly afforded in cases where no individual plaintiff has suffered any great loss. Furthermore, the maxim may not apply at all, as Illinois courts have permitted conversion' claims to be birought for only nominal damages. If Illinois courts recognize conversion claims where there are no damages at all, they might well also recognize actions for very small damages,") (internal quotation marks and citations omitted); R. Rudnick & Co. v. G.F. Protection, Inc., No. 08 C 1856, 2009 WL 112380, at *4 (N.D.Ill. Jan. 15, 2009) (since Illinois courts permit nominal damages in conversion actions, the de minim-is theory has no applicability); Brodsky v. Hu-manaDental Ins. Co., No. 10-C-3233, 2011 WL 529302, at *7 (N.D.Ill. Feb. 8, 2011) (on a motion to dismiss, a presumption that the injury is so minor that the de minimis doctrine applies would be inconsistent with the court’s duty to draw reasonable inferences of fact in the plaintiff's favor) (quoting Centerline, 545 F.Supp.2d at 779).
. The Court does not mean to suggest that the de minimis doctrine bars all conversion claims based on the receipt of unsolicited text messages. With different allegations, a plaintiff might be able to state such a claim. For example, if a plaintiff’s receipt of unwanted text messages caused him to exceed the limits of his- cellular data plan, requiring him to pay a penalty, the loss may not be de minimis. Similarly, if a plaintiff received multiple unsolicited text messages while traveling internationally, she might have to pay a high fee per text message—or data roaming charges—that could be considered nontrivial. There are no such allegations here. Recognizing the possi- > bility that Izsak might be able to state claim, however, the dismissal of Count II will be without prejudice.