MEMORANDUM OPINION AND ORDER
Melissa Thrasher-Lyon (“Plaintiff’), brings this putative class action pursuant to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the Illinois Automatic Telephone Dialers Act (“ITA”), 815 111. Comp. Stat. 305/1 et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 111. Comp. Stat. 505/1 et seq., against Illinois Fanners Insurance Company (“Fanners”) and CCS Commercial LLC, d/b/a Credit Collection Services Commercial (“CCS”), (collectively, “Defendants”). (R. 1, Compl. at 1.) Presently before the Court are Defendants’ motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (R. 21, CCS’s Mot.; R. 25, Farmers’ Mot.) For the reasons discussed below, CCS’s motion to dismiss is denied in part and granted in part, and Farmers’ motion to dismiss is granted.
RELEVANT FACTS
On April 8, 2011, while riding her bicycle, Plaintiff was involved in an accident with a motorist at the corner of Racine Avenue and Belmont Avenue in Chicago, Illinois. (R. 1, Compl. ¶ 6.) According to Plaintiff, the motorist suffered no injuries, and there was only minor damage to the motorist’s vehicle. (Id.) Plaintiff suffered minor physical injuries. (Id.) The motorist was insured by Farmers. (Id. ¶ 7.)
On April 11, 2011, Farmers sent Plaintiff a letter stating that Plaintiff “was responsible for the damages in the amount of $3,240.19” and characterizing $3,240.19 as the “Amount Owed.” (Id. ¶ 8a.) The letter threatened to take “further action” against Plaintiff if she did not pay. (Id.) On May 2, 2011, Farmers sent Plaintiff a second letter, again characterizing $3,240.19 as
A little over one month after the accident, on May 16, 2011, CCS sent Plaintiff a “WARNING NOTICE” asserting that Farmers had subrogation rights for $3,240.19. (Id. ¶ 10a.) The notice stated that the matter had been referred to CCS “for recovery,” threatened that a failure to pay $3,240.19 “could result in a law suit [sic] being filed against [Plaintiff] and/or license suspension,” and included a box stating, “PAY IMMEDIATELY, $3,240.19.” (Id.) The notice further asserted that Farmers had paid the $3,240.19. (Id. ¶ 11.) According to Plaintiff, Farmers only paid $740.19 because the motorist’s policy included a $2,500 deductible. (Id.) On June 6, 2011, CCS sent Plaintiff another “WARNING NOTICE” again asserting that Farmers had subrogation rights for $3,240.19, stating that the matter had been referred to CCS for recovery, and threatening that failure to pay could result in a lawsuit or license suspension. (Id. ¶ 10b.) The June 6, 2011 letter also contained a box stating, “PAY IMMEDIATELY, $3,240.19.” (Id.) Both “WARNING NOTICES” directed Plaintiff to make a payment at the following website: “www. warningnotice.com.” (Id. ¶ 10.)
On June 27, 2011, Plaintiff alleges that she received a “SETTLEMENT NOTICE” notifying Plaintiff that if she paid a “reduced amount,” CCS would treat the claim for $3,240.19 as “settled-in-full.” (Id. ¶ 13.) This letter referenced the following website: “www.settlementnotice.com.” (Id. ¶ 14.)
In addition to the letters, Plaintiff avers that she received a series of telephone calls on her cellular telephone from CCS. (Id. ¶¶ 16-17.) According to Plaintiff, CCS placed the calls from an automatic telephone dialing system, and when Plaintiff was unable to answer the calls, CCS left a voicemail message on her phone using a machine or prerecorded voice. (Id. ¶ 16.) When Plaintiff was able to answer her phone, “there was silence; [and] no person was waiting on the other end.” (Id.) Finally, Plaintiff alleges that she never consented for CCS to call her at her cellular telephone number. (Id. ¶ 17.)
PROCEDURAL HISTORY
Plaintiff initiated this action on July 1, 2011. (R. 1, Compl.) In her complaint, Plaintiff alleges multiple counts against CCS and Farmers. Count I is a TCPA claim asserted against CCS. (Id. ¶¶ 45-48.) In Count II Plaintiff alleges that CCS violated the ITA. (Id. ¶¶ 49-50.) Counts III and IV are ICFA claims asserted against CCS and Farmers, respectively. (Id. ¶¶ 51-62.)
On August 25, 2011, CCS filed a motion to dismiss Plaintiffs complaint pursuant to Rule 12(b)(6). (R. 21, CCS’s Mot.) That same day, Fanners filed a motion to dismiss Plaintiffs complaint under Rules 12(b)(1) and 12(b)(6). (R. 25, Farmers’ Mot.) On August 30, 2011, CCS sought leave to supplement its memorandum in support of its motion to dismiss, (R. 30, CCS’s Mot. Supp.), which the Court granted on August 31, 2011. (R. 32, Min. Entry.)
In its motion to dismiss, CCS seeks dismissal of Plaintiffs TCPA, ITA, and ICFA claims against it for failure to state a claim and because Plaintiff lacks standing to bring her ICFA claim. (R. 21, CCS’s Mot. ¶ 2.) Farmers seeks dismissal
LEGAL STANDARDS
A motion to dismiss pursuant to Rule 12(b)(1) asks the court to dismiss an action over which it allegedly lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The party asserting jurisdiction bears the burden of proof. See Glaser v. Wound Care Consultants, Inc.,
A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7,
Finally, affirmative defenses are generally not an appropriate grounds for dismissal at the complaint stage because plaintiffs are not required to plead facts in the complaint to anticipate and defeat affirmative defenses. United States v. Lewis,
ANALYSIS
I. Count I: Plaintiffs TCPA claim against CCS
CCS first argues that Plaintiffs TCPA claim should be dismissed for failure to state a claim. The TCPA and its implementing rules and regulations make it unlawful “to make any call (other than a call ... made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice-to any telephone number assigned to ... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii); see also 47 C.F.R. § 64.1200(a)(l)(iii). The TCPA provides for a private right of action, based on violations of the TCPA or its regulations, “to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater[.]” 47 U.S.C. § 227(b)(3)(B). To state a TCPA cause of action, a plaintiff must allege: (1) that a
CCS argues that Plaintiff fails to state a TCPA claim because she gave prior express consent to be called on her cellular telephone. (R. 23, CCS’s Mem. at 3.) According to CCS, Plaintiffs provision of her cellular telephone number to the police, who recorded her telephone number on the accident report, constitutes express consent to call her on that number. (Id.) In response, Plaintiff argues that CCS never received Plaintiffs express consent; rather, CCS “skimmed her phone number” from the accident report. (R. 36, Pl.’s Resp. at 10.) According to Plaintiff, “[h]er act in giving her phone number to a police officer would at best amount to implied consent” and “has none of the hallmarks of the ‘prior express consent’” contemplated by the Federal Communications Commission. (Id. at 10-11.)
Although neither of the parties raise the issue, the Court notes that “ ‘express consent’ is not an element of a TCPA plaintiffs prima facie case, but rather is an affirmative defense for which the defendant bears the burden of proof.” Grant v. Capital Mgmt. Servs., L.P.,
II. Count II: Plaintiffs ITA claim against CCS
CCS next contends that Plaintiffs ITA claim fails to state a claim. The ITA’s “recorded messages provision” makes it unlawful “to play a prerecorded message placed by an autodialer without the consent of the called party.” 815 111. Comp. Stat. 305/30(b). The ITA also allows “[a]ny customer injured by a violation of this Act [to] bring an action for the recovery of damages.” 815 111. Comp. Stat. 305/30(c). Accordingly, to state a claim under the ITA, a plaintiff must allege that (1) she is a telephone customer; (2) the defendant placed a call using an autodialer; (3) the defendant played a prerecorded message; (4) the call was not made with her consent; and (5) she was injured by the defendant’s alleged violation. 815 111. Comp. Stat. 305/30(b)-(c).
CCS argues that Plaintiff fails to plead sufficient factual allegations to support her ITA claim for three reasons. First, CCS argues that Plaintiff fails to plead a claim
With respect to CCS’s first argument, Plaintiff concedes that she “has not alleged a violation of the [ITA’s] restrictions on the methods of using autodialers,” but that instead “she brings her claim only under the recorded messages provision.” (R. 36, PL’s Resp. at 15.) Accordingly, the Court focuses on the ITA’s recorded messages provision.
Regarding CCS’s second argument, where actual injury or damages are an element of a claim, as they are here, a plaintiff must state sufficient facts alleging that she has suffered an injury or damages. See Yu v. Int’l Bus. Machs. Corp.,
Even if Plaintiff had sufficiently alleged an injury, however, the Court finds that Plaintiff also fails to allege that CCS placed telephone calls using a “recorded message,” as that term is defined in the ITA. Specifically, Plaintiff alleges that CCS placed the calls “from an automatic telephone dialing system!,]” and that “[w]hen Plaintiff was not available to answer the calls, each time a voicemail message was left on her phone using a machine or prerecorded voice.” (R. 1, Compl. ¶ 16.) She also alleges that, “[w]hen Plaintiff was able to answer her cellular phone, there was silence; no person was waiting on the other end.” (Id.) Under the ITA, “recorded messages” are “taped communications soliciting the sale of goods or services without live voice interaction.” 815 111. Comp. Stat. 305/5(e). Nowhere in her complaint does Plaintiff allege that the messages she received were communications soliciting the sale of goods or services. Indeed, nowhere in her complaint does Plaintiff set forth any details about the contents of the messages.
CCS also complains that Plaintiff fails to allege that it used “autodialer” equipment when placing the telephone calls. The ITA defines “autodialers” as “any tele
Finally, CCS argues that as with her TCPA claim, Plaintiff fails to state an ITA claim because she provided her consent. (R. 23, CCS’s Mem. at 7; R. 33, CCS’s Supp. at 2.) Although this Court’s research has not found any case law analyzing the ITA’s consent provision and whether the ITA requires express or implied consent, the Court finds that like the TCPA, consent is an affirmative defense. Plaintiff has not set forth any facts in her complaint to definitively conclude that she provided CCS consent to call her cellular telephone number, and instead alleges that she never consented for CCS to call her at her cellular telephone number. (R. 1, Compl. ¶ 17.) Because the four corners of Plaintiff s complaint allege that CCS did not have her consent to contact her, the Court declines to grant CCS’s motion to dismiss her ITA claim on this basis.
Accordingly, Plaintiff’s ITA claim against CCS is dismissed because Plaintiff fails to sufficiently allege that she suffered any damages or that CCS placed telephone calls using a “recorded message” or an “autodialer” as those terms are defined in the ITA.
III. Counts III and IV: Plaintiffs ICFA claims against CCS and Farmers
Both CCS and Farmers move to dismiss Plaintiffs ICFA claims in Counts III and IV of her complaint. The ICFA makes it unlawful to engage in “unfair or deceptive acts or practices, including ... fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact ... in the conduct of any trade or commerce.” 815 111. Comp. Stat. 505/2. The ICFA creates a private cause of action for “[a]ny person who suffers actual damage as a result of a violation of [the ICFA.]” 815 111. Comp. Stat. 505/10a(a).
Defendants posit several grounds for the dismissal of Plaintiff s ICFA claims. Defendants first argue that Plaintiffs claims should be dismissed because she fails to allege facts plausibly supporting any deceptive or unfair acts in trade or commerce, and that she lacks standing under the ICFA because she is not a consumer. (R. 23, CCS’s Mem. at 7-9; R. 26, Farmers’ Mem. at 5-7; R. 37, Farmers’ Reply at 7-9.) Second, Defendants argue that Plaintiffs ICFA claims should be dismissed because she fails to allege that she has been “harmed in a concrete, tangible way,’ ” and therefore she lacks Article III standing and has failed to state an ICFA claim. (R. 23, CCS’s Mem. at 10; R. 26, Farmers’ Mem. at 8; R. 38, CCS’s Reply at 12-13; R. 37, Farmers’ Reply at 2-7.) Third, Defendants argue that the letters Plaintiff received were proper because Farmers and CCS were entitled to collect
A. Whether Plaintiff has sufficiently alleged that she has Article III Standing
The Court first addresses Defendants’ standing arguments. As an initial matter, the Court notes that in responding to Defendants’ arguments, Plaintiff conflates the concepts of statutory standing with Article III standing, and in so doing fails to address Defendants’ arguments that she lacks Article III standing to pursue her claims. (R. 36, Pl.’s Resp. at 21-23.) Whereas “Article III standing enforces the Constitution’s case-or-controversy requirement!,]” in determining whether a plaintiff has statutory standing, “a court considers whether Congress, via a statutory provision, ‘has accorded this injured plaintiff the right to sue the defendant to redress his injury.’ ” George v. Kraft Foods Global, Inc.,
To establish Article III standing, a plaintiff must allege (1) an injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife,
B. Whether Plaintiff has statutory standing under the ICFA to pursue her claim
Next, Defendants argue that Plaintiffs ICFA claims also fail because: (1) Plaintiffs claims against them do not involve trade or commerce, and (2) because she is not a consumer under the ICFA, she therefore lacks standing. (R. 23, CCS’s Mem. at 7-9; R. 26, Farmers’ Mem. at 5-7; R. 37, Farmers’ Reply at 7-9.) To adequately plead a private cause of action under the ICFA, a plaintiff must allege: (1) an unfair or deceptive act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the decep
1. Whether Defendants’ conduct falls within the purview of the ICFA
Defendants first argue that Plaintiffs ICFA claims do not involve trade or commerce. (R. 23, CCS’s Mem. at 7-8; R. 26, Farmers’ Mem. at 5-6.) Under the ICFA, the terms “trade” and “commerce” mean “the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of [Illinois].” 815 111. Comp. Stat. 505/l(f). Additionally, the ICFA provides that it “shall be liberally construed to effect the purposes thereof.” ' 815 111. Comp. Stat. 505/lla. According to Defendants, their acts of pursuing Farmers’ subrogation
Contrary to Defendants’ argument, the Illinois Supreme Court has found that debt collection practices are embraced by the ICFA. People ex rel. Daley v. Datacom Sys. Corp.,
Similarly, Plaintiff alleges that CCS provided services to Farmers, specifically debt collection services. (R. 1, Compl. ¶ 5.) Plaintiff further alleges that in providing these services to Fanners, CCS “uses the mails and interstate telephony to collect disputed claims and debts[.]” (Id.) Daley suggests that Defendants’ actions, like those of Datacom, constitute the sale or distribution of services that directly or indirectly affect residents of Illinois, and therefore Defendants’ actions constitute trade or commerce as liberally construed under the ICFA. A subsequent case, Norton v. City of Chicago,
2. Whether Plaintiff must be a consumer or satisfy the consumer nexus test to pursue her ICFA claim
In Norton, a case arising from the litigation in Daley, plaintiffs brought suit against Datacom, the City of Chicago, and Cook County, alleging, inter alia, violations of the ICFA.
Under the ICFA, a consumer is “any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household.” 815 Ill. Comp. Stat.
Contrary to Defendants’ assertions, Illinois courts are split on this issue. See Bank One Milwaukee v. Sanchez,
Considering the split of authority, the Illinois appellate court in Bank One Milwaukee held that the “consumer nexus test” test articulated in Downers Grove Volkswagen, Inc., which allows a business to maintain-a cause of action under the ICFA even though the business is not a consumer of the defendant’s goods, should apply equally to nonbusiness plaintiffs. 270 IlLDec. 642,
The Court therefore turns to whether Plaintiff, a non-consumer, has met the consumer nexus test. To establish an implication of consumer concerns, a plaintiff must plead the following: “(1) that [its] actions were akin to a consumer’s actions to establish a link between [it] and consumers; (2) how defendant’s representations ... concerned consumers other than [plaintiff]; (3) how defendant’s particular [action] involved consumer protection concerns; and (4) how the requested relief would serve the interests of consumers.” Global Total Office Ltd. P’ship,
C. Whether Plaintiff sufficiently alleged that she suffered actual damages
Even if Plaintiff had sufficiently set forth factual allegations satisfying the consumer nexus test, the Court finds that Plaintiffs ICFA claims would still fail because she has failed to allege that she was damaged. To bring an action pursuant to the ICFA, a plaintiff must allege “actual damages” and the “actual damages must arise from ‘purely economic injuries.’ ” Cooney v. Chi. Pub. Schs.,
Plaintiff argues that “[u]nder Iqbal, [she] need only make an allegation of damages that is factual ... and the allegation must not be ‘implausible’ under the circumstances.” (R. 36, Pl.’s Resp. at 23.) In her complaint, Plaintiff alleges only that she “seeks to recover statutorily set damages” from Defendants (R. 1, Compl. ¶ 1), she “is entitled to recover actual and punitive damages” (Id. ¶¶ 14, 56, 62), and she was “damaged as a direct and proximate result” of Defendants’ alleged violations of the ICFA. (Id. ¶¶ 55, 61.) Contrary to Plaintiffs argument, these allegations are mere legal conclusions. Such allegations fail to provide Defendants with any notice about the amount and extent of harm Plaintiff has allegedly suffered or how exactly she was damaged or injured. Such allegations are not factual in nature and they cannot save Plaintiffs complaint.
Plaintiff also argues that she has alleged that she suffered damages as a result of Defendants’ “deceptive letters” and while she may not have alleged that she acted on the letters, the case law is well-established that “actual damages may include emotional distressf.]” (R. 36, PL’s Resp. at 23-24) (citing Hill v. Sisters of St. Francis Health Servs., Inc., No. 06-1488,
D. Whether the letters and notices Defendants sent Plaintiff were deceptive
Finally, CCS and Farmers both argue that the letters they sent were not deceptive. (R. 23, CCS’s Mem. at 10-11; R. 37, Farmers’ Reply at 10-11.) The Illinois Supreme Court has cautioned, however, that whether a defendant’s notices were deceptive and violated the ICFA “is a factual issue which must be decided by the trier of fact[.]” Daley, 165 Ill.Dee. 655,
CONCLUSION
For the foregoing reasons, CCS’s motion to dismiss (R. 21) is DENIED as to Count
Notes
. Subrogation is simply “[t]he substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor.” Black's Law Dictionary (9th ed.2009). In the insurance context, subrogation is “[t]he principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy.” Id.
. The ICFA also provides that ”[i]n construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act ['FTCA'].” 815 111. Comp. Slat. 505/2. In Daley, the Illinois Supreme Court separately relied on the FTC regulation concerning the collection of debts to support its conclusion that Datacom’s debt collection activities involved trade or commerce.
. Plaintiff relies heavily on a Washington Supreme Court case, Panag v. Farmers Ins. Co. of Washington,