Izsak v. Draftkings, Inc.

191 F. Supp. 3d 900, 2016 U.S. Dist. LEXIS 76217, 2016 WL 3227299
CourtDistrict Court, N.D. Illinois
DecidedJune 13, 2016
DocketNo. 14-cv-07952
StatusPublished
Cited by14 cases

This text of 191 F. Supp. 3d 900 (Izsak v. Draftkings, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Izsak v. Draftkings, Inc., 191 F. Supp. 3d 900, 2016 U.S. Dist. LEXIS 76217, 2016 WL 3227299 (N.D. Ill. 2016).

Opinion

MEMORANDUM OPINION AND ORDER

Andrea R. Wood, United States District Judge.

Plaintiff David Izsak brings this putative class action against Defendant DraftKings, Inc. (“DraftKings”), alleging that Draft-Kings sent him an unsolicited text message in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Izsak also asserts a claim for common law conversion. Before the Court is DraftKings’s motion to dismiss Izsak’s corrected class action complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 15.) For the reasons stated below, the motion is granted in part and denied in part.

BACKGROUND

As set forth in the complaint,1 Draft-Kings provides an online platform for individuals to compete for cash prizes in fantasy sports contests. (Compl. ¶ 1, Dkt. No. 6.) These contests take place over the internet and participants pay an entry fee. (Id.) To market its products and services, DraftKings uses “Short Message Service” or “SMS” to transmit short text messages (usually no more than 160 characters) to wireless telephones. (Id. ¶ 11.) Text messages may cost the recipient either in the form of a rhonetary charge for each text message received or a deduction from the recipient’s text messaging plan. (Id. ¶ 14.)

- On September 1, 2014, DraftKings sent an unsolicited text message to Izsak’s wireless telephone. (Id. ¶¶ 17-18,)2 The text .message reads as follows:

from, djjgll@yahoo.com: Come play DraftKings with me. Use my link and we’ll both get a bonus http://www. draftkings.com/r/GERONIMOll

(Compl. Ex. A, Dkt. No! 6-1.) The website referenced in the text message is registered by DraftKings. (Compl. ¶21, Dkt. No. 6.) The text message “from” field identifies the sender as “617-849-9834.” (Id. ¶ 19.) When that number is' called, the following message plays: “Hi, this automated message [is] from DraftKings. Please refer to the original message you received from this number.” (Id. ¶ 20.) Iz-sak alleges that DraftKings sent the same, or substantially the same, text message en masse to thousands of wireless telephone numbers using “equipment that had the capacity to store or produce telephone numbers to be called using .a random or sequential number generator, and to dial such numbers.” (Id. ¶¶ 22-23.) He further claims that the equipment sent the text messages simultaneously and without human intervention. (Id. ¶ 36.) According to Izsak, receipt of the text message utilized his wireless data, which made the data otherwise unusable and decreased the performance of his cellular phone. (Id. ¶ 43.) Izsak represents that, as a result, his device could no longer be used for any other purpose. (Id. ¶ 45.)

Izsak has filed a two-count' complaint based on DraftKings’s transmission of the [903]*903unsolicited text message. First, he claims that DraftKings violated the provision of the TCPA that prohibits making any call3 to a cellular telephone number (other than a call made for emergency purposes or. with the prior express consent of the called party) using an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice. See 47. U.S.C. § 227(b)(l)(A)(iii). Second, Izsak asserts that by sending unauthorized text messages to him and others, DraftKings converted to its own use their wireless data— an asset of economic value for which they paid. On behalf of himself and a putative class of similarly-situated individuals, Iz-sak seeks an injunction requiring Draft-Kings to cease all unsolicited text message activity, as well as an award of actual and statutory damages.

DISCUSSION

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While a complaint need not include detailed factual allegations, there “must be enough to raise a right to relief above the speculative level.” Id. at 555, 127 S.Ct. 1955. The plaintiff must “ ‘plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “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. (internal quotation marks and citation omitted). In- addition, “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.” Id. (internal citation omitted). Finally, this Court is “not obliged to ignore any facts set forth in the complaint that undermine the plaintiffs claim or to assign any weight to unsupported conclusions of law.” In the Matter of Wade, 969 F.2d 241, 250 (7th Cir.1992) (internal quotation marks and citation omitted).

I. Count I—Violation of the Telephone Consumer Protection Act

To plead a violation of the TCPA adequately, Izsak must allege that DraftKings utilized an ATDS to send the September 1, 2014 text message. See 4!7 U.S.C. § 227(b)(l)(A)(iii). The TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The Federal Communications Commission (“FCC”) has instructed that “the capacity to dial numbers without human intervention is -the basic function of an [ATDS.] ” Sterk v. Path, Inc., No. 13 CV 2330, 2014 [904]*904WL 8813657, at *2 (N.D.I11. Aug. 8, 2014) (citing In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Red. 559, 566 (2008)). See also Modica v. Green Tree Servicing, LLC., No. 14 C 3308, 2015 WL 1943222, at *2 (N.D.Ill. Apr. 29, 2015) (noting that the FCC has “recognized the capacity to dial numbers without human intervention as an essential requirement for an ATDS.”) (internal citations omitted).

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191 F. Supp. 3d 900, 2016 U.S. Dist. LEXIS 76217, 2016 WL 3227299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/izsak-v-draftkings-inc-ilnd-2016.