Warciak v. One, Inc.

MOTION

N.D. Ill.September 23, 2016

131496049v1 0990433 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MATTHEW WARCIAK, ) ) Plaintiff, ) Case No. 16-CV-07426 ) v. ) Judge Matthew F. Kennelly ) ONE, INC. ) ) Defendant. ) ) DEFENDANT'S MOTION TO DISMISS Defendant, One, Inc., by its attorneys, David M. Schultz, John P. Ryan, Joel D. Bertocchi, and Brandon S. Stein, moves this Court pursuant to Fed.R.Civ.P. Rule 12(b)(6) to dismiss Plaintiff's class action complaint (Dkt#1-1) and states as follows: 1. Plaintiff filed a two count class action complaint, alleging a violation of the Telephone Consumer Protection Act ("TCPA") (Count I) and the Illinois Consumer Fraud Act ("ICFA") (Count II) based on one text that he received. Dkt#1-1, Complaint. 2. Both counts are based upon the allegation that One, Inc. initiated a text message through its After School App to Plaintiff using an automatic telephone dialing system without his consent. 3. One, Inc. moves to dismiss Plaintiff's complaint in its entirety because Plaintiff fails to state a claim under either the TCPA or the ICFA as a matter of law. Plaintiff fails to state a claim under Count I or Count II the following reasons: a. The allegations in Plaintiff's complaint show that the After School App user was the initiator of the text message pursuant to the FCC's 2015 Order, so Plaintiff's claim under the TCPA fails as a matter of law. Case: 1:16-cv-07426 Document #: 24 Filed: 09/23/16 Page 1 of 3 PageID #:71 2 131496049v1 0990433 b. Count II additionally fails because there can be no violation of the ICFA as there is at the very least a legitimate dispute how the TCPA should be interpreted. c. Count II also fails because an alleged violation of the TCPA is not a per se violation of the ICFA. d. Count II further fails as a matter of law because Plaintiff does not and cannot allege that he suffered any economic damage. 4. One, Inc. incorporates herein by reference the arguments made and the authorities cited in its Memorandum of Law in support of its Motion to Dismiss Plaintiff's complaint. WHEREFORE, Defendant, One, Inc. respectfully requests that this Court grant its motion to dismiss Plaintiff's class action complaint with prejudice and/or grant any other relief to the Defendant that is equitable and just. Respectfully submitted on behalf of Defendant, ONE, INC. /s/ John P. Ryan David M. Schultz Joel D. Bertocchi John P. Ryan Brandon S. Stein Hinshaw & Culbertson, LLP 222 N. LaSalle, Suite #300 Chicago, IL 60601 Tel: 312-704-3000 E-mail:jryan@hinshawlaw.com dschultz@hinshawlaw.com jbertocchi@hinshawlaw.com bstein@hinshawlaw.com Case: 1:16-cv-07426 Document #: 24 Filed: 09/23/16 Page 2 of 3 PageID #:72 3 131496049v1 0990433 CERTIFICATE OF SERVICE I hereby certify that on September 23, 2016, I electronically filed or caused to be filed with the Clerk of the U.S. District Court, Northern District of Illinois Eastern Division,the foregoing Defendant's Motion to Dismiss by using the CM/ECF system, which will electronically serve such filing(s) upon all counsel of record. /s/John P. Ryan Case: 1:16-cv-07426 Document #: 24 Filed: 09/23/16 Page 3 of 3 PageID #:73