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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL WOOD, on behalf of himself 

and a putative class of similarly situated 

individuals,

 

 Plaintiff,

 

 v.

CAPITAL VISION SERVICES, LLC,

MYEYEDR. OPTOMETRISTS, LLC,

MEEYEDR. OPTOMETRY OF 

ILLINOIS, LLC,

 Defendants.

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 No. 20 C 4584

 Judge Virginia M. Kendall

ORDER

Michael Wood purchased a pair of non-prescription sunglasses at a MyEyeDr. optometry 

location in Chicago in the summer of 2017. (Dkt. 24 ¶ 23.) Wood believes that he may have 

provided his cell phone number to MyEyeDr. during this visit. (Id.) Three years later, he received 

a call on his cell phone from the number associated with that same MyEyeDr. location. (Id. ¶ 16.)

Wood did not answer the call, so MyEyeDr. left him a prerecorded voicemail requesting that he 

schedule an appointment to see an optometrist. (Id. ¶ 18.)

Wood sued MyEyeDr. and Capital Vision, a company that provides marketing services to 

MyEyeDr., on the theory that the phone call violated Wood’s rights under the Telephone 

Consumer Protection Act (“TCPA”). Defendants now move to dismiss on the grounds that Wood’s 

Amended Complaint fails to state a claim upon which relief can be granted. As set forth below, 

the Amended Complaint does not state a claim that is plausible on its face, so the Motion (Dkt. 25) 

is granted.

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the 

Court must construe the complaint “in a light most favorable to the nonmoving party, accept wellpleaded facts as true, and draw all inferences in the non-moving party’s favor.” Bell v. City of 

Chicago, 835 F.3d 736, 738 (7th Cir. 2016). The complaint must contain a “short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 

party need not plead “detailed factual allegations,” but “labels and conclusions” or a “formulaic 

recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 555 (2007). A complaint must contain sufficient factual matter that when “accepted as 

true . . . ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Twombly, 550 U.S. at 570).

Case: 1:20-cv-04584 Document #: 30 Filed: 12/23/20 Page 1 of 2 PageID #:268
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Under 47 U.S.C. § 227(b), it is “unlawful for any person within the United States . . . to 

make any call (other than a call . . . made with the prior express consent of the called party) using 

any automated telephone dialing system or an artificial or prerecorded voice . . . to any telephone 

number assigned to a . . . cellular telephone service.” This general rule is subject to several 

exceptions, none of which are relevant here.

The only dispute for purposes of this Motion is whether Wood plausibly alleges that he 

received this call without giving prior express consent. Common sense dictates that when a 

customer gives his phone number to a business that sells certain services, he can expect to receive 

calls from that business to encourage him to use those services. The Amended Complaint plainly 

alleges that he gave his phone number to this company (Dkt. 24 ¶ 23), but it also alleges that he 

never consented to have them call him. (Id. ¶ 22.) This defies common sense. By volunteering 

one’s number, one expects to receive a call. It is not plausible that “Plaintiff did not consent to be 

contacted at the phone number” (id. ¶ 23) that Plaintiff admits to having given to Defendants. It is 

difficult to imagine what Plaintiff thought Defendants would do with his number other than call 

him.

Plaintiff’s allegations of non-consent lack the facial plausibility required to survive a 

motion to dismiss under Twombly and Iqbal.

CONCLUSION

The Motion to Dismiss [25] is granted and the Amended Complaint is dismissed without 

prejudice.1

____________________________________

Virginia M. Kendall

United States District Judge

Date: December 23, 2020

1 The Court does not reach the Motion to Strike the Class Allegations because the Amended Complaint is being 

dismissed in its entirety. The Court expresses no view as to the merits of that Motion.

Case: 1:20-cv-04584 Document #: 30 Filed: 12/23/20 Page 2 of 2 PageID #:269