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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BENJAMIN GARNER AND DEBORAH 

SCHICK, individually and on behalf of all 

similarly situated individuals, 

Plaintiffs,

v.

ALLSTATE INSURANCE COMPANY, an 

Illinois Insurance Company,

Defendant.

Civil Action No.: 1:20-cv-04693

Hon. John Z. Lee 

DEFENDANT ALLSTATE INSURANCE COMPANY’S OPPOSED PARTIAL MOTION 

TO DISMISS PLAINTIFFS’ CLASS ACTION COMPLAINT OR, IN THE 

ALTERNATIVE, MOTION TO STAY

NOW COMES Defendant Allstate Insurance Company (“Allstate”), by and through its 

undersigned counsel of record, and hereby moves to dismiss the First Cause of Action in Plaintiffs’ 

Complaint (ECF No. 1)1 pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, 

to stay this litigation pending the United States Supreme Court’s decision in Facebook, Inc. v. 

Duguid, No. 19-511, 2020 WL 3865252 (July 9, 2020), scheduled for oral argument on December 

8, 2020.2 In support of this Motion, Allstate submits, contemporaneously filed herewith, its 

Memorandum of Law in Support.

 1 Pursuant to the authority in this District, Allstate’s partial motion to dismiss extends its time to answer the 

remaining cause of action in Plaintiffs’ Complaint not addressed herein, and therefore Allstate will not be 

filing an answer to the Complaint while this Motion is pending before the Court. See, e.g., Intercom 

Ventures, LLC v. Fastv, Inc., No. 13 C 232, 2013 WL 2357621, at *7 (N.D. Ill. May 28, 2013) 

(acknowledging that a timely-filed partial Rule 12(b)(6) motion extends the defendant’s time to respond to 

the remaining claims until after the [c]ourt’s decision); Vendetti v. Compass Envtl., Inc., No. 06 CV 3556, 

2006 WL 8199711, at *3 (N.D. Ill. Oct. 25, 2006) (acknowledging that courts in the Northern District have 

held that “a defendant’s filing of a partial motion to dismiss automatically extends its time to answer the 

unchallenged counts, as if it had moved to dismiss all counts”).

2 On October 16, 2020, consistent with the Court’s rules, the undersigned attempted to contact Plaintiffs’ 

counsel by phone to discuss whether he would consent (or object) to the filing of this Motion and the relief 

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As set forth in Allstate’s accompanying Memorandum of Law in Support, Plaintiffs 

Benjamin Garner and Deborah Schick conclusorily allege that Allstate or agents on its behalf 

violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”) by placing 

calls made with an automatic telephone dialing system (“ATDS”) to Plaintiffs without their prior 

express written consent. The First Cause of Action of Plaintiffs’ Complaint warrants dismissal as 

Plaintiffs have merely parroted the statutory language of the TCPA and failed to allege facts 

sufficient to permit the Court to draw a reasonable inference that an ATDS was used in placing 

the purported calls. Plaintiffs’ claim therefore does not meet the Rule 12 pleading standards and 

should be dismissed due to its vague and conclusory nature. 

In the alternative, the Court should stay the entirety of this case pending the Supreme 

Court’s ruling in Facebook v. Duguid in which the Supreme Court is expected to resolve the 

growing circuit split as to what constitutes an ATDS under the TCPA. By addressing the 

definitional scope of ATDS, the Supreme Court may conclusively provide the standard by which 

TCPA plaintiffs are to raise and sufficiently plead ATDS allegations, which is fundamental to this 

case. Judicial economy and efficiency also favor staying this litigation due to the upcoming oral 

argument scheduled in the Facebook case in December 2020 and the early, pre-discovery posture 

of this case.

WHEREFORE, Allstate respectfully requests that the Court dismiss Plaintiffs’ First Cause 

of Action with prejudice or, in the alternative, stay the entirety of this matter pending the United 

 

sought herein. Plaintiffs’ counsel’s voicemail inbox was full, and the undersigned was unable to leave a 

message. The undersigned then sent a detailed e-mail to Plaintiffs’ counsel outlining the Motion and 

seeking Plaintiffs’ counsel’s consent for the filing of the Motion and, if opposed, the basis for the 

opposition. As of the time of filing this Motion, the undersigned has not received a response. Allstate 

assumes, therefore, the Motion will be opposed by Plaintiffs.

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States Supreme Court’s decision in Facebook and grant any other relief the Court may deem 

appropriate.

Dated: October 19, 2020

Respectfully submitted,

Allstate Insurance Company

/s/ Lewis S. Wiener

Lewis S. Wiener

EVERSHEDS SUTHERLAND (US) LLP

700 Sixth Street, N.W., Suite 700

Washington, DC 20001

Telephone: 202-383-0140

Facsimile: 202-637-3593

lewiswiener@eversheds-sutherland.com

Timothy J. McCaffrey (Bar No. 6229804)

EVERSHEDS SUTHERLAND (US) LLP

900 N. Michigan Avenue, Suite 1000

Chicago, IL 60611

Telephone: 312-535-4445

Facsimile: 312-724-9322

timmcaffrey@eversheds-sutherland.com

Francis X. Nolan, IV (pro hac vice)

EVERSHEDS SUTHERLAND (US) LLP

The Grace Building

1114 Avenue of the Americas, 40th Fl.

New York, NY 10036

Telephone: 212-389-5083

Facsimile: 212-389-5099

franknolan@eversheds-sutherland.com

Attorneys for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on October 19, 2020, a copy of the foregoing Defendant Allstate 

Insurance Company’s Opposed Partial Motion to Dismiss Plaintiffs’ Class Action Complaint or, 

in the Alternative, Motion to Stay was served via ECF to the following attorneys of record:

Steven L. Woodrow 

Woodrow & Peluso, LLC

3900 E. Mexico Avenue, Suite 300

Denver, Colorado 80210

Tel: 720-213-0675

Fax: 303-927-0809

swoodrow@woodrowpeluso.com

Attorneys for Plaintiffs 

/s/ Lewis S. Wiener

Lewis S. Wiener

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