(2009); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); JIL, ex rel. Madigan v.
Telemarketing Assocs., Inc., 538 U.S. 600, 618 (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 (2007) (quoting Papasan v. Allain, 478 U.S, 265, 286 (1986) (internal quotation
marks omitted)). “/gbal 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 /qgbal, 556 U.S. at 678 (2009). 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).

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
(quoting Twombly, 550 U.S. at 570) (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. Jd. A claim has


Hanley does not plead how many calls Green Tree allegedly made to him in
violation of the Act. Nor docs Hanley plead when the allegedly offending calls were
made. He does not plead when he asked Green Tree to cease calling him, nor how he
asked. The factual allegations in the complaint represent nothing more than “a formulaic
recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, and such
“[t]breadbare recitals . . . supported by mere conclusory statements do not suffice,” [gbal,
556 U.S. at 678. Hanley merely states what he understands the TCPA to proscribe, and
then goes on to plead threadbare and conclusory facts that allege the elements of a prima
facie cause of action under the Act, but nothing more. Hanley’s complaint, therefore, is
highly suspect because it merely recites naked facts mimicking the elements of a cause of
action under the TCPA, See McCauley, 671 F.3d at 617 (holding that the plaintiff's
complaint was insufficient under Twombly and Igbal because most of the facts alleged
were “actually legal conclusions or elements of the cause of action, which may be
disregarded on a motion to dismiss”).

The Court explained in /qbal that “the plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). The
Court finds that Hanley has at most pleaded only a “sheer possibility” that Green Tree
violated the Act—this will not do, See id.; see also McReynolds, 694 F.3d at 886
(finding that the plaintiff's allegations that the defendant “intentionally designed the
retention program based on production levels that incorporated the effects of past
discrimination, and that the firm did so with the intent to discriminate against black

brokers. Stated as such, [were] merely conclus[ory allegations that were insufficient

10


the Communications Act of 1934, as amended. 47 U.S.C. § 227. Congress’s intent in
passing the Act was to prohibit telemarketing by telephone, fax, and ATDS, which had
become a nuisance and an affront to the privacy rights of consumers. Mims v. Arrow Fin.
Servs., LLC, —U.S. —, —, 132 S. Ct. 740, 744 (2012). In particular, in passing the
TCPA Congress wished “to protect residential telephone subscriber privacy rights by
restricting certain commercial solicitation and advertising uses of the telephone and
related telecommunications equipment.” H. R. No. 102-317, at 6-7 (1991),

Congress delegated to the FCC the power to make rules and regulations necessary
to implement the TCPA. 47 U.S.C. § 227(b)(2); see also H. R. No. 102-317, at 6 (1991).
The Supreme Court has explained that Congress delegated such power to the FCC with
the expectation that the Agency would clarify and supplement the Act by filling its
interstices through promulgating rules and regulations with the force of law. Global
Crossing Telecomm., Inc. v. Metrophones Telecomm., Inc., 550 U.S. 45, 57-58 (2007)
(citing United States v. Mead Corp., 533 U.S. 218, 229 (2001); Nat'l Cable &
Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 975 (2005); Chevron U.S.A.
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984)).

The substantive provision of the Act that is applicable to this case makes it
unlawful for persons “(A) to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice . . . (iii) to any telephone
number assigned to a... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii)
(emphasis supplied); see also In the Matter of Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991 (“Declaratory Ruling”), 23 F.C.C.R. 559, 568 (F.C.C. 2008).


facial plausibility when its factual content allows the Court to draw a reasonable
inference that the defendant is liable for the misconduct alleged. Jd, at 678.

The Twombly/Igbal “plausibility” determination is a “context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id. at
679. “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 plausibility of
entitlement to relief.” Id. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation
marks omitted). In this context, “plausibility” does not imply that the Court should
decide which parties’ version of the pleaded facts to credit as true, or which version is
more likely true than not. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
Rather, the plausibility standard means that “the plaintiff must give enough details about
the subject-matter of the case to present a story that holds together. In other words, the
court will ask itself could these things have happened, not did they happen.” Jd.

Thus, a motion to dismiss may be properly granted in favor of the moving party
where the plaintiff does not plead a plausible entitlement to relief, either by failing to
provide the defendant with notice of plausible claims pleaded against it or else by
asserting in the complaint only speculative, conclusory, or threadbare pleadings devoid of
the requisite factual pleadings that plausibly suggest an entitlement to relief.

ANALYSIS

This case is much ado about nothing. At least that is the conclusion that the Court

must reach after reviewing Hanley’s wholly inadequate complaint in which next to

nothing is pleaded. In 1991, Congress enacted the TCPA, as codified in section 227 of


.

great a probability as such terms as “preponderance of the evidence’
connote.

Atkins v. City of Chi., 631 F.3d 823, 831-32 (7th Cir. 2011) (Posner, J.).

The governing pleading standard “demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Yet that is
precisely what Hanley supplies to the Court in his complaint: a complaint that, by its own
terms, pleads only three factual allegations, one of which is not actually a fact at all but
rather a legal conclusion and thus not entitled to the assumption of truth. See Iqbal, 556
US. at 681; (R. 1, Compl. 11 6-8). Such a complaint is not sufficient under the
governing pleading standards of Rule 8 and does not give rise to a plausible entitlement
to relief as required by Twombly and Iqbal. “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Igbal, 556 U.S. at 681 (quoting Twombly, 550 U.S. at 555, 557) (internal
citation and quotation marks omitted); see also McReynolds, 694 F.3d at 886.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 681 (citing Twombly, 550 U.S. at 555).
The Seventh Circuit, asking, “what do we take away from Twombly, Erickson, and
Iqbal?” answered that one of the things it takes away from this troika of cases is that “in
considering the plaintiff's factual allegations, courts should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.”
Brooks, 578 F.3d at 581. Hanley’s complaint is patently insufficient under the pleading
standards governing Rule 8 as interpreted by the Supreme Court in Twombly, Erickson,

and Iqbal, and as subsequently construed by the Seventh Circuit Court of Appeals.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
GARY HANLEY, on behalf of himself )
and others similarly situated, )
)
Plaintiff, )
) No. 12 C 4158

Y. )

) Judge Ruben Castillo
GREEN TREE SERVICING, LLC, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

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. 11.) 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. 14.)
Green Tree is the servicer of the mortgage on Hanley’s home, (/d. 15.) Hanley
stipulates that his cellular telephone number is 630-xxx-5690. (/d. 14.) 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.” ({d.{7.) Hanley also alleges that Green Tree made these calls “after

plaintiff demanded that the calls stop.” (Jd.) Hanley further alleges that these acts were


file an amended complaint. Even after Green Tree’s motion to dismiss was filed, which
must have alerted Hanley to the possible pleading problems in his complaint, he still did
not seek to amend. Ordinarily this Court, when dismissing a complaint on
Twombly/Iqbal inadequate pleading grounds, would grant the plaintiff leave to amend the
insufficient complaint. “Leave to amend need not be granted, however, if it is clear that
any amendment would be futile.” Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013).
The Court is persuaded that in this case granting Hanley leave to amend would be
completely futile. See Foman v. Davis, 371 U.S. 178, 182 (1962) (Leave to amend
should be freely granted in the discretion of the district court “[i]n the absence of any
apparent or declared reason—such as undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.”-—that compel the court to deny leave to amend.); Bausch v.
Stryker Corp., 630 F.3d 549, 562 (7th Cir. 2010) (“A district court may deny leave to file
an amended complaint in the case of undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, and
futility of amendment.”) (internal quotation marks omitted). Therefore, the Court’s

dismissal of Hanley’s complaint is with prejudice.

12


under Iqbal and] unsupported by the necessary factual allegations to support a reasonable
inference of discriminatory intent.”). Hanley’s complaint does not describe his claims or
the grounds supporting them in sufficient detail in order to give Green Tree the fair notice
that Twombly demands. See Twombly, 550 U.S at 555 (“Federal Rule of Civil Procedure
8(a)(2) requires only a short and plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice of what the claim is and the
grounds upon which it rests.”) (quoting Conley, 355 U.S. at 47) (internal quotation marks
and alterations omitted). Nor does he plead sufficient facts to give rise to a plausible
entitlement to relief. See Iqbal, 556 U.S at 678-79 (“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.”) (quoting Twombly, 550 U.S. at 570) (internal quotation
marks omitted). In sum, Hanley’s complaint taken as a whole fails to “establish a
nonnegligible probability that the claim is valid[.]” Atkins, 631 F.3d at 831-32. In this
case, there are no facts from which the Court may “infer more than the mere possibility
of misconduct.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (internal
quotation marks omitted). As in Jgbal “the complaint has alleged—but it has not
shown—that [Hanley] is entitled to relief.” Id. Indeed, he is not so entitled. Therefore,
Hanley’s complaint, which fails to satisfy the liberal pleading standards required of
claims brought in federal court pursuant to Rule 8 of the Federal Rules of Civil
Procedure, must be dismissed.

During the pendency of this case Hanley has filed numerous pleadings, including
motions for the extension of time and motions for leave to submit additional authority to

the Court, At no point during any of this time, however, did Hanley move for leave to

11


To state a cause of action under the TCPA, a plaintiff must allege that: (1) a call
was made; (2) the caller used an ATDS or artificial or prerecorded voice; (3) the
telephone number called was assigned to a cellular telephone service; and (4) the caller
did not have prior express consent of the recipient. 47 U.S.C. § 227(b)(1)(A) (iii); 47
CER. § 64.1200(a)(1); Thrasher-Lyon vy. Ill. Farmers Ins. Co., 861 F. Supp. 2d 898, 905
(N.D. Ill. 2012) (Castillo, J.) (citing Pimental v. Google Inc., No. 11-2585, 2012 WL
691784, at *2 (N.D. Cal. Mar. 2, 2012)). In his complaint, Hanley pleads that
“Defendant called [his] cellular telephone on multiple occasions over the past four years
using an [ATDS] and/or artificial or prerecorded voice.” (R. 1, Compl. 47.) Hanley
further pleads that Green Tree made these alleged calls after he “demanded that the calls
stop.” (Id.)

“It is by now well established that a plaintiff must do better than putting a few
words on paper that, in the hands of an imaginative reader, might suggest that something
has happened to her that might be redressed by the law.” Swanson, 614 F.3d at 403. The
Seventh Circuit has read “the Court in [gbal to be admonishing those plaintiffs who
merely parrot the statutory language of the claims that they are pleading . . ., rather than
providing some specific facts to ground those legal claims[.] [Such plaintiffs] must do
more.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Hanley is just such a plaintiff.
In discussing the objectives of Zwombly and Iqbal, the Seventh Circuit has stated:

[O]ne sees more or less what the Court was driving at: the fact that the

allegations undergirding a plaintiff's claim could be true is no longer

enough to save it. Twombly and Iqbal do not reject the principle that when

a complaint is dismissed for failure to state a claim the reviewing court is

to assume that the factual allegations made in the complaint (unless

fantastic, or contradicted in the complaint itself or in documents attached

to it) are true. But the complaint taken as a whole must establish a
nonnegligible probability that the claim is valid, though it need not be so


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 Jn 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’1 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’] 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 plaintiffs complaint to the assumption of truth, and draws all

reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 680


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 established that 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. (/d.) 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. (d.)

On October 29, 2012, Hanley moved to submit additional authority to the Court,
(R. 35, Pl.’s Mot. Add’! 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’! 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


done in violation of the Telephone Consumer Protection Act of 1991 (“T'CPA” or the
“Act”), 47 U.S.C. § 227. (Id. 11.) 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 calis through Green Tree’s ATDS after demanding that such calls
stop. (id. 14.) Hanley alleges one count against Green Tree. (Id. 119-13.) 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. (fd. 116, 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). (/d. 110.)

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.” (fd. 121.) 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.)


CONCLUSION
For the reasons set forth above, Green Tree’s motion to dismiss (R. 17) is
GRANTED, and Hanley’s complaint is dismissed. The Clerk of the Court is directed to

enter judgment in favor of Green Tree Servicing, LLC and against Gary Hanley.

snrtnim, EE nas

Judge Ruben Castillo
United States District Court

Dated: March 21, 2013

13