United States District Court, E.D. Wisconsin
AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS THE
SECOND AMENDED COMPLAINT (DKT. NO. 17), DENYING AS MOOT
PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 25), GRANTING
THE PLAINTIFF’S MOTION TO FILE A PORTION OF THE MOTION
TO COMPEL UNDER SEAL (DKT. NO. 24), AND DISMISSING
PAMELA PEPPER United States District Judge
September 3, 2015, the plaintiff filed a complaint on his own
behalf, and on behalf of putative class members. Dkt. No. 1.
The complaint alleged that the defendant, a cable services
provider, collected personal information- names, addresses,
Social Security numbers, phone numbers, etc.-from “tens
of millions of consumers across the country.”
Id. at 1. The complaint further alleged that when
after customers terminate their services with the defendant,
the defendant “continues to maintain personally
identifiable information on all of its previous customers
indefinitely.” Id. at 1-2. The complaint
alleged that this practice violated 47 U.S.C. §551(e)
(subsection e of the Cable Communications Policy Act, or
“CCPA”), which requires cable operators to
destroy personally identifiable information “[i]f the
information is no longer necessary for the purpose for which
it was collected and there are no pending requests or orders
for access to such information under subsection (d) of this
section or pursuant to a court order.” Id.; 47
original complaint’s prayer for relief, the plaintiff
sought class certification; an order enjoining the defendant
from “the unlawful practices and statutory violations
asserted herein;” actual, liquidated and punitive
damages as provided by the CCPA; and attorneys’ costs
and fees as provided by the CCPA. Id. at 14.
October 5, 2015, the defendant filed in lieu of an answer a
motion asking the court to compel arbitration, and to stay
the proceedings. Dkt. No. 6. The motion alleged that the
plaintiff had entered into a Residential Services Subscriber
Agreement with the defendant, and that by entering into that
agreement, the plaintiff had agrees to resolve his claim via
arbitration. Id. The brief in support of the motion
laid out, verbatim, the arbitration provision in the
subscriber agreement. Dkt. No. 6-1 at 7. The pertinent
part of the agreement states that, “[e]xcept for claims
for injunctive relief . . ., any past, present or future
controversy or claim arising out of or related to this
agreement shall be resolved by binding arbitration . . .
.” Id. In other words, the subscriber
agreement provided that claims for money damages had to be
resolved through binding arbitration, not litigation.
weeks later, rather than filing a response to the motion to
stay proceedings and compel arbitration, the plaintiff filed
an amended complaint. Dkt. No. 9. The only significant change
from the original complaint to the amended one appeared in
the prayer for relief; in the October 26, 2015 amended
complaint, the plaintiff deleted his request for damages,
costs and fees. Id. at 13. Despite removing his
request for monetary damages, costs and fees, however, the
plaintiff left in the amended complaint an extensive
discussion regarding the economic value consumers place on
the protection of personally identifiable information.
Id. at 6-9.
than two weeks later, the parties filed a joint motion asking
the court to grant the plaintiff leave to file a second
amended complaint. Dkt. No. 10. The motion indicated that the
defendant believed that the amended complaint, like the
original, sought money damages, which meant that the claim
had to be submitted to arbitration pursuant to the subscriber
agreement. Id. at 1. While the plaintiff
“disagree[d], ” he sought to file a second
amended complaint seeking only injunctive relief.
Id. In an attempt to avoid filing another motion to
compel arbitration, the defendant joined the motion.
Id. The court granted leave to amend on November 10,
plaintiff filed the second amended complaint on November 20,
2015. Dkt. No. 12. On December 23, 2015, the defendant filed
this motion to dismiss the second amended complaint. Dkt. No.
17. The defendant sought dismissal of this complaint because
the plaintiff had failed to plead the elements of a claim for
injunctive relief, and because the request for injunctive
relief was allegedly vague. Id. at 2. The court
heard oral argument on the motion on May 16, 2016, after the
parties had fully briefed it. Dkt. No. 34. On the day that
the court heard oral argument, the United States Supreme
Court issued its decision in Spokeo v. Robins,
__U.S. __, 136 S.Ct. 1540 (May 24, 2016). The parties asked
the court to allow them to submit simultaneous briefs
regarding whether Spokeo had any impact on the case;
the court granted that request, and the parties filed their
supplemental briefs on June 6, 2016. Dkt. Nos. 35, 36.
order to have Article III standing to pursue a claim that a
plaintiff has suffered harm under a statute where
“Congress plainly sought to curb the dissemination of
false information by adopting procedures designed to decrease
that risk, ” the plaintiff “cannot satisfy the
demands of Article III by alleging a bare procedural
violation.” Spokeo, 136 S.Ct. at 1550. The
plaintiff must demonstrate that the procedural violation
resulted in “concrete harm.” Id.
that a plaintiff has standing, that plaintiff must provide a
“short and plain statement of the claim showing that
[he] is entitled to relief” to survive a motion to
dismiss under Fed.R.Civ.P. 12(b)(6). Fed.R.Civ.P. 8(a)(2). A
plaintiff does not need to plead specific facts, and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
considering whether a complaint states a claim, courts follow
the principles set forth in Twombly. First, they
must “identify pleadings that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. A plaintiff
must support legal conclusions with factual allegations.
Id. Second, if there are well-pleaded factual
allegations, courts must “assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.” Id.
basis of injunctive relief in the federal courts has always
been irreparable harm and inadequacy of legal
remedies.” Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 506-507 (1959). Injunctive relief is
appropriate, then, when, among other things, the moving party
can “demonstrate that (1) no adequate remedy at law
exists; [and] (2) it will suffer irreparable harm absent
injunctive relief . . . .” U.S. v. Rural Elec.
Convenience Co-op. Co., 922 F.2d 429, 432 (7th Cir.
1991) (citations omitted). “It is well settled that the
availability of an adequate remedy at law renders injunctive
relief inappropriate.” Id. (citing, e.g.
Northern Cal. Power Agency v. Grace Geothermal
Corp., 469 U.S. 1306 (1984) and Beacon Theatres,
Inc., 359 U.S. at 509).
defendant has asked the court to dismiss the second amended
complaint. Dkt. No. 12. The prayer for relief in the second
amended complaint asks the court to enter an order “A.
[d]eclaring that this action may be maintained as a class
action, and certifying the Class as requested herein; B.
[e]njoining TWC from the unlawful practices and statutory
violations asserted herein; and C. [g]ranting such other and
further relief as may be just and proper.” Id.
at 13. As the defendant has argued, the plaintiff now ...