Summary
finding that a plaintiff needed to plead information about the number, timing, and content of the alleged calls
Summary of this case from Zeidel v. Nat'l Gas & Elec., LLCOpinion
No. 12 C 4158.
2013-06-7
Gary HANLEY, on behalf of himself and others similarly situated, Plaintiff, v. GREEN TREE SERVICING, LLC, Defendant.
Alexander Holmes Burke, Burke Law Offices, LLC, Chicago, IL, for Plaintiff. James Dominick Adducci, Marshall Lee Blankenship, Adducci, Dorf, Lehner, Mitchell & Blankenship, P.C., Chicago, IL, for Defendant.
Alexander Holmes Burke, Burke Law Offices, LLC, Chicago, IL, for Plaintiff. James Dominick Adducci, Marshall Lee Blankenship, Adducci, Dorf, Lehner, Mitchell & Blankenship, P.C., Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
RUBEN CASTILLO, District Judge.
Gary Hanley brings this putative class action against Green Tree Servicing, LLC, (“Green Tree”) seeking relief for alleged violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227. (R. 1, Compl. ¶ 1.) Presently before the Court is Green Tree's motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 17, Def.'s Mot.) For the reasons set forth herein, Green Tree's motion is granted.
RELEVANT FACTS
Hanley is a homeowner who resides in this judicial District. (R. 1, Compl. ¶ 4.) Green Tree is the servicer of the mortgage on Hanley's home. ( Id. ¶ 5.) Hanley stipulates that his cellular telephone number is 630–xxx–5690. ( Id. ¶ 4.) Hanley alleges that “Defendant called Plaintiff's cellular telephone on multiple occasions over the past four years using an automatic telephone dialing system [ (“ATDS”) ] and/or an artificial or prerecorded voice.” ( Id. ¶ 7.) Hanley also alleges that Green Tree made these calls “after plaintiff demanded that the calls stop.” ( Id.) Hanley further alleges that these acts were done in violation of the Telephone Consumer Protection Act of 1991 (“TCPA” or the “Act”), 47 U.S.C. § 227. ( Id. ¶ 1.) This is the entirety of the facts pleaded in Hanley's complaint.
PROCEDURAL HISTORY
On May 29, 2012, Hanley commenced this cause of action by filing a complaint with this Court on behalf of himself and others similarly situated. (R. 1, Compl.) Hanley also requested that the Court certify a class of plaintiffs comprised of the people in this District who received calls through Green Tree's ATDS after demanding that such calls stop. ( Id. ¶ 14.) Hanley alleges one count against Green Tree. ( Id. ¶¶ 9–13.) In Count I of Hanley's complaint he claims that Green Tree violated the TCPA, which prohibits the use of an ATDS or artificial or prerecorded voice to call any cellular telephone, by using such a device to call Hanley and putative class members after they demanded that the calls stop. ( Id. ¶¶ 6, 7, 10.) Hanley claims that Green Tree ignored his demand that the calls cease, allegedly in violation of the TCPA as stated in 47 U.S.C. § 227(b). ( Id. ¶ 10.)
Hanley and putative class members seek relief in four forms: first, they seek statutory damages of $500 per violation of the Act and treble damages ($1,500) if any given violation of the Act is proven to be willful; second, they seek a permanent injunction against Green Tree enjoining it from calling their telephone numbers using an ATDS; third, they seek a declaration that Green Tree used an ATDS to call Hanley and putative class members in violation of the TCPA; and finally, they seek any other relief that the Court finds “just and proper.” ( Id. ¶ 21.) On July 16, 2012, the parties entered into a joint stipulation requesting that the motion for class certification be withdrawn without prejudice in order to allow more time for discovery. (R. 16, J. Stip.)
On July 18, 2012, in response to Hanley's complaint, Green Tree filed the instant motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 17, Def.'s Mot.) Green Tree argues that Hanley has failed to state a plausible entitlement to relief under the governing pleading standards, and in particular that Hanley has not alleged or established that Green Tree lacked consent to make the prerecorded phone calls under the TCPA. (R. 22, Def.'s Mem. at 1.) Additionally, Green Tree argues that Hanley states no basis upon which treble damages can be awarded. ( Id.)
On August 21, 2012, Hanley filed a response to Green Tree's motion to dismiss. (R. 25, Pl.'s Resp.) Hanley first contends that in a TCPA case proving prior express consent to calls by an ATDS is an affirmative defense that a defendant must prove and not an element of a plaintiff's prima facia claim under the Act. ( Id.) Hanley also argues that he is only required to plead general facts as to the state of mind of Green Tree to recover treble damages; in this case, negligent, willful, or knowing. ( Id.)
On October 29, 2012, Hanley moved to submit additional authority to the Court, (R. 35, Pl.'s Mot. Add'l Authority I), which the Court granted on November 8, 2012, (R. 38, Min. Entry). In particular, Hanley wanted to draw the Court's attention to a then-recently decided opinion of the Ninth Circuit Court of Appeals, Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir.2012). (R. 35, Pl.'s Mot. Add'l Authority I.) Green Tree responded to Hanley's motion by arguing the merits of why Chesbro is inapposite to the case at hand. (R. 39, Def.'s Resp. to Pl's Mot. Add'l Authority I.)
On December 5, 2012, Hanley again moved for leave to submit additional authority, (R. 40, Pl.'s Mot. Add'l Authority II), which the Court granted on December 11, 2012, (R. 43, Min. Entry). In this motion Hanley asked the Court to take notice of the Federal Communication Commission's (the “FCC”) declaratory ruling in In re Rules and Regulations Implementing the Tel. Consumer Protection Act of 1991, Declaratory Ruling as to Petition of SoundBite Communications, Inc., CG Docket No. 20–278 (Nov. 29, 2012) (“ SoundBite Ruling ”). (R. 40, Pl.'s Mot. Add'l Authority II.) Green Tree responded to Hanley's motion on December 10, 2012, arguing that the SoundBite Ruling does not apply to this case. (R. 42, Def.'s Resp. to Pl's Mot. Add'l Authority II.) The Court took Green Tree's response under advisement when it granted Hanley leave to file this additional authority. (R. 43, Min. Entry.)
Presently before the Court is Green Tree's Rule 12(b)(6) motion to dismiss Hanley's complaint for failure to state a claim upon which relief can be granted. (R. 17, Def.'s Mot.)
LEGAL STANDARD
The purpose of a Rule 12(b)(6) motion is not to decide or rule on the merits of the case at bar; rather a Rule 12(b)(6) motion tests only the legal sufficiency of the complaint, Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir.1990), “to state a claim upon which relief may be granted,” Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009); see also Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir.2007). Because a motion to dismiss tests the legal sufficiency of a pleading, when considering a Rule 12(b)(6) motion to dismiss the Court construes the complaint in the light most favorable to the plaintiff, entitles all of the well-pleaded factual allegations in the plaintiff's complaint to the assumption of truth, and draws all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 680, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam); Ill., ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 618, 123 S.Ct. 1829, 155 L.Ed.2d 793 (2003); Graczyk v. W. Publ'g Co., 660 F.3d 275, 279 (7th Cir.2011). However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (internal quotation marks omitted)). “Iqbal clarified ... [that] 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.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir.2012) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.) Thus, on a motion to dismiss “legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to [the] presumption of truth.” McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir.2011) (citing Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).
The Court begins with the text of Rule 8 of the Federal Rules of Civil Procedure, which sets forth the “general rules of pleading” claims in federal court. Fed.R.Civ.P. 8. Rule 8 states in relevant part: “A pleading that states a claim for relief must contain: ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Interpreting Rule 8, the Supreme Court has held that “[d]etailed factual allegations” are not required, but the plaintiff must allege facts that, when “accepted as true ... state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal quotation marks omitted). If the factual allegations are well-pleaded, the Court assumes their veracity and then proceeds to determine whether they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678, 129 S.Ct. 1937.
The Twombly/Iqbal “plausibility” determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937. “The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully. 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. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (internal quotation marks omitted). In this context, “plausibility” does not imply that the Court should decide which parties' version of the pleaded facts to credit as true, or which version is more likely true than not. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.2010). Rather, the plausibility standard means that “the plaintiff must give enough details about the subject-matter of the case to present a story that holds together. In other words, the court will ask itself could these things have happened, not did they happen.” Id.
Thus, a motion to dismiss may be properly granted in favor of the moving party where the plaintiff does not plead a plausible entitlement to relief, either by failing to provide the defendant with notice of plausible claims pleaded against it or else by asserting in the complaint only speculative, conclusory, or threadbare pleadings devoid of the requisite factual pleadings that plausibly suggest an entitlement to relief.
ANALYSIS
This case is much ado about nothing. At least that is the conclusion that the Court must reach after reviewing Hanley's wholly inadequate complaint in which next to nothing is pleaded. In 1991, Congress enacted the TCPA, as codified in section 227 of the Communications Act of 1934, as amended. 47 U.S.C. § 227. Congress's intent in passing the Act was to prohibit telemarketing by telephone, fax, and ATDS, which had become a nuisance and an affront to the privacy rights of consumers. Mims v. Arrow Fin. Servs., LLC, ––– U.S. ––––, ––––, 132 S.Ct. 740, 744, 181 L.Ed.2d 881 (2012). In particular, in passing the TCPA Congress wished “to protect residential telephone subscriber privacy rights by restricting certain commercial solicitation and advertising uses of the telephone and related telecommunications equipment.” H.R. No. 102–317, at 6–7 (1991).
Congress delegated to the FCC the power to make rules and regulations necessary to implement the TCPA. 47 U.S.C. § 227(b)(2); see also H.R. No. 102–317, at 6 (1991). The Supreme Court has explained that Congress delegated such power to the FCC with the expectation that the Agency would clarify and supplement the Act by filling its interstices through promulgating rules and regulations with the force of law. Global Crossing Telecomm., Inc. v. Metrophones Telecomm., Inc., 550 U.S. 45, 57–58, 127 S.Ct. 1513, 167 L.Ed.2d 422 (2007) (citing United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 975, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
The substantive provision of the Act that is applicable to this case makes it unlawful for persons “(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party ) using any automatic telephone dialing system or an artificial or prerecorded voice ... (iii) to any telephone number assigned to a ... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis supplied); see also In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“ Declaratory Ruling ”), 23 F.C.C.R. 559, 568 (F.C.C.2008).
To state a cause of action under the TCPA, a plaintiff must allege that: (1) a call was made; (2) the caller used an ATDS or artificial or prerecorded voice; (3) the telephone number called was assigned to a cellular telephone service; and (4) the caller did not have prior express consent of the recipient. 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1); Thrasher–Lyon v. Ill. Farmers Ins. Co., 861 F.Supp.2d 898, 905 (N.D.Ill.2012) (Castillo, J.) (citing Pimental v. Google Inc., No. 11–2585, 2012 WL 691784, at *2 (N.D.Cal. Mar. 2, 2012)). In his complaint, Hanley pleads that “Defendant called [his] cellular telephone on multiple occasions over the past four years using an [ATDS] and/or artificial or prerecorded voice.” (R. 1, Compl. ¶ 7.) Hanley further pleads that Green Tree made these alleged calls after he “demanded that the calls stop.” ( Id.)
“It is by now well established that a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law.” Swanson, 614 F.3d at 403. The Seventh Circuit has read “the Court in Iqbal to be admonishing those plaintiffs who merely parrot the statutory language of the claims that they are pleading ..., rather than providing some specific facts to ground those legal claims[.] [Such plaintiffs] must do more.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.2009). Hanley is just such a plaintiff. In discussing the objectives of Twombly and Iqbal, the Seventh Circuit has stated:
[O]ne sees more or less what the Court was driving at: the fact that the allegations undergirding a plaintiff's claim could be true is no longer enough to save it. Twombly and Iqbal do not reject the principle that when a complaint is dismissed for failure to state a claim the reviewing court is to assume that the factual allegations made in the complaint (unless fantastic, or contradicted in the complaint itself or in documents attached to it) are true. But the complaint taken as a whole must establish a nonnegligible probability that the claim is valid, though it need not be so great a probability as such terms as “preponderance of the evidence” connote.
Atkins v. City of Chi., 631 F.3d 823, 831–32 (7th Cir.2011) (Posner, J.).
The governing pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Yet that is precisely what Hanley supplies to the Court in his complaint: a complaint that, by its own terms, pleads only three factual allegations, one of which is not actually a fact at all but rather a legal conclusion and thus not entitled to the assumption of truth. See Iqbal, 556 U.S. at 681, 129 S.Ct. 1937; (R. 1, Compl.¶¶ 6–8). Such a complaint is not sufficient under the governing pleading standards of Rule 8 and does not give rise to a plausible entitlement to relief as required by Twombly and Iqbal. “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955) (internal citation and quotation marks omitted); see also McReynolds, 694 F.3d at 886. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The Seventh Circuit, asking, “what do we take away from Twombly,Erickson, and Iqbal ?” answered that one of the things it takes away from this troika of cases is that “in considering the plaintiff's factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Brooks, 578 F.3d at 581. Hanley's complaint is patently insufficient under the pleading standards governing Rule 8 as interpreted by the Supreme Court in Twombly,Erickson, and Iqbal, and as subsequently construed by the Seventh Circuit Court of Appeals.
Hanley does not plead how many calls Green Tree allegedly made to him in violation of the Act. Nor does Hanley plead when the allegedly offending calls were made. He does not plead when he asked Green Tree to cease calling him, nor how he asked. The factual allegations in the complaint represent nothing more than “a formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and such “[t]hreadbare recitals ... supported by mere conclusory statements do not suffice,” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Hanley merely states what he understands the TCPA to proscribe, and then goes on to plead threadbare and conclusory facts that allege the elements of a prima facie cause of action under the Act, but nothing more. Hanley's complaint, therefore, is highly suspect because it merely recites naked facts mimicking the elements of a cause of action under the TCPA. See McCauley, 671 F.3d at 617 (holding that the plaintiff's complaint was insufficient under Twombly and Iqbal because most of the facts alleged were “actually legal conclusions or elements of the cause of action, which may be disregarded on a motion to dismiss”).
The Court explained in Iqbal that “the plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The Court finds that Hanley has at most pleaded only a “sheer possibility” that Green Tree violated the Act—this will not do. See id.; see also McReynolds, 694 F.3d at 886 (finding that the plaintiff's allegations that the defendant “intentionally designed the retention program based on production levels that incorporated the effects of past discrimination, and that the firm did so with the intent to discriminate against black brokers. Stated as such, [were] merely conclus[ory allegations that were insufficient under Iqbal and] unsupported by the necessary factual allegations to support a reasonable inference of discriminatory intent.”). Hanley's complaint does not describe his claims or the grounds supporting them in sufficient detail in order to give Green Tree the fair notice that Twombly demands. See Twombly, 550 U.S at 555, 127 S.Ct. 1955 (“Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.”) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99) (internal quotation marks and alterations omitted). Nor does he plead sufficient facts to give rise to a plausible entitlement to relief. See Iqbal, 556 U.S at 678–79, 129 S.Ct. 1937 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal quotation marks omitted). In sum, Hanley's complaint taken as a whole fails to “establish a nonnegligible probability that the claim is valid[.]” Atkins, 631 F.3d at 831–32. In this case, there are no facts from which the Court may “infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2)) (internal quotation marks omitted). As in Iqbal “the complaint has alleged—but it has not shown—that [Hanley] is entitled to relief.” Id. Indeed, he is not so entitled. Therefore, Hanley's complaint, which fails to satisfy the liberal pleading standards required of claims brought in federal court pursuant to Rule 8 of the Federal Rules of Civil Procedure, must be dismissed.
During the pendency of this case Hanley has filed numerous pleadings, including motions for the extension of time and motions for leave to submit additional authority to the Court. At no point during any of this time, however, did Hanley move for leave to file an amended complaint. Even after Green Tree's motion to dismiss was filed, which must have alerted Hanley to the possible pleading problems in his complaint, he still did not seek to amend. Ordinarily this Court, when dismissing a complaint on Twombly/Iqbal inadequate pleading grounds, would grant the plaintiff leave to amend the insufficient complaint. “Leave to amend need not be granted, however, if it is clear that any amendment would be futile.” Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir.2013). The Court is persuaded that in this case granting Hanley leave to amend would be completely futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (Leave to amend should be freely granted in the discretion of the district court “[i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”—that compel the court to deny leave to amend.); Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir.2010) (“A district court may deny leave to file an amended complaint in the case of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment.”) (internal quotation marks omitted). Therefore, the Court's dismissal of Hanley's complaint is with prejudice.
CONCLUSION
For the reasons set forth above, Green Tree's motion to dismiss (R. 17) is GRANTED, and Hanley's complaint is dismissed. The Clerk of the Court is directed to enter judgment in favor of Green Tree Servicing, LLC and against Gary Hanley.
ORDER
Plaintiff Gary Hanley's motion to reconsider this Court's Memorandum Opinion and Order of March, 21, 2013, dismissing his suit in favor of Defendant Green Tree Servicing, LLC (“Green Tree”), (R. 51), which he brings pursuant to Rules 60(b)(1) and 60(b)(6) of the Federal Rules of Civil Procedure, is GRANTED. See Hanley v. Green Tree Servicing, 934 F.Supp.2d 977, No. 12 C 4158, 2013 WL 1189697 (N.D.Ill. Mar.21, 2013).
This Court has broad authority to review its prior orders and enjoys a wide degree of discretion to reconsider dismissal orders subject to the time limitations proscribed by the Federal Rules of Civil Procedure “so as to ... avoid unnecessary appellate procedures.” Divane v. Krull Elec. Co., Inc., 194 F.3d 845, 847 (7th Cir.1999); see also Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1270 (7th Cir.1996) (“Disposition of a motion for reconsideration is left to the discretion of the district court, and its ruling will not be reversed absent an abuse of that discretion.”); Tobel v. City of Hammond, 94 F.3d 360, 362 (7th Cir.1996) (“A district court's decision to grant or deny Rule 60(b) relief is entitled to great deference, and we review the district court's decision for abuse of discretion.”). In particular, Hanley takes issue with the Court's dismissal of the suit with prejudice denying him an opportunity to file an amended complaint, holding that any such amendment would be “futile.” (R. 51, Pl.'s Mot. at 7–8); Hanley, 2013 WL 1189697, at *6 (“The Court is persuaded that in this case granting Hanley leave to amend would be completely futile.”).
The Court notes at the outset that granting or denying a motion for leave to file an amended complaint is a matter entrusted entirely to the sound discretion of this Court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The Court need not accept an amended complaint where it is apparent that it fails to cure the defects identified in the original complaint. Arazie v. Mullane, 2 F.3d 1456, 1464 (7th Cir.1993). “As a general matter, Rule 15 ordinarily requires that leave to amend be granted at least once when there is a potentially curable problem with the complaint or other pleading .... while a court may deny a motion for leave to file an amended complaint, such denials are disfavored.” Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir.2010) (emphasis supplied).
Leave to amend should be denied only “if it is clear that any amendment would be futile.” Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir.2013) (emphasis supplied); see also Barry Aviation Inc. v. Land O'Lakes Mun. Airport Comm'n 377 F.3d 682, 687 (7th Cir.2004) (“That leave be ‘freely given’ is especially advisable when such permission is sought after the dismissal of the first complaint. Unless it is certain from the face of the complaint that any amendment would be futile or otherwise unwarranted, the district court should grant leave to amend after granting a motion to dismiss.”) (emphasis supplied); Austin v. House of Vision, Inc., 385 F.2d 171, 172 (7th Cir.1967) ( per curiam ) (“Where, as here, plaintiff seeks an opportunity to amend his complaint in order to meet the objections stated by the trial court ... he should be accorded such an opportunity. Whether such an amended complaint will state a cause of action cannot be determined unless and until such an amended complaint is filed and tested.”).
A leading treatise has succinctly stated the reason for this approach: “If a proposed amendment is not clearly futile, then denial of leave to amend is improper. The better practice is to allow at least one amendment regardless of how unpromising the initial pleading appears because except in unusual circumstances it is unlikely that the court will be able to determine conclusively on the face of a defective pleading whether plaintiff actually can state a claim.” 5A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed.1990) (internal footnotes omitted) (emphasis supplied).
Because Hanley has made a significant effort to correct the pleading errors that plagued his first complaint and caused it to be dismissed, it is no longer “clear” to the Court that an amended complaint would be futile. “[F]utile repleadings include restating the same facts using different language, reasserting claims previously determined, failing to state a valid theory of liability, and the inability to survive a motion to dismiss.” Garcia v. City of Chi., Ill., 24 F.3d 966, 970 (7th Cir.1994) (internal citations omitted); see also Verhein v. S. Bend Lathe, Inc., 598 F.2d 1061, 1063 (7th Cir.1979) (“[T]he court may deny leave to amend where the proposed amendment fails to allege facts which would support a valid theory of liability or where the party moving to amend has not shown that the proposed amendment has substantial merit.”) (internal citation omitted). A facial review of Hanley's amended complaint reveals that it does not appear to suffer from the defects of futile repleading identified by the Seventh Circuit—although judgment must be reserved as to whether Hanley's amended complaint can survive a motion to dismiss. See Austin, 385 F.2d at 172.
Therefore, Hanley is granted leave to amend his complaint pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure. Hanley's first amended complaint, attached to his motion to reconsider, is hereby filed with the Court instanter. (R. 51, Pl.'s Mot., App. A, Am. Compl.) Green Tree has thirty days from the entry of this Order in which to file a new motion to dismiss. If Green Tree fails to file a new motion to dismiss by that time, the Court will assume that Green Tree stands on its original motion to dismiss and will adjudicate the case accordingly.
As the Court has previously noted, during the pendency of this case Hanley filed numerous pleadings, including agreed motions for extensions of time, ( See R. 10, Min Entry; R. 28, Min. Entry; R. 47, Min. Entry), in addition to motions for leave to submit additional authority to the Court during the briefing of Green Tree's motion to dismiss, (R. 35, Pl.'s Mot. Add'l Auth.; R. 40, Pl.'s Mot. Add'l Auth.). At no point, however, did Hanley move for leave to file an amended complaint. Even after Green Tree moved to dismiss the suit, which surely must have alerted Hanley to potential pleading problems contained in his complaint, he still did not seek leave to amend. (R. 17, Def.'s Mot. Dismiss.)
A great deal of time and money has been wasted by Hanley's dilatory behavior in failing to seek leave to file an amended complaint at a point in the proceedings that would have avoided the nuisance and disorganization of the current issues and motions, as well as the dilemma in which the parties now find themselves. The vexing situation presented now, made more problematic by Hanley himself, is further complicated by the fact that Hanley filed in this Court the present motion for reconsideration pursuant to Rules 60(b)(1) and 60(b)(6) of the Federal Rules of Civil Procedure, (R. 51, PL's Mot), and a notice of appeal to the United States Court of Appeals for the Seventh Circuit, (R. 54, PL's Not. Appeal), pursuant to Federal Rule of Appellate Procedure 3(a)(1). Hanley has wasted the time of this Court and of the Court of Appeals. He should have sought leave to amend long ago, thereby avoiding this unfortunate situation of Hanley's own making. Hanley's first complaint was as bare-bones and conclusory as any this Court has ever seen; it was filed in complete derogation of Rule 8 of the Federal Rules of Civil Procedure and was a particularly egregious violation of the pleading standards which govern that Rule. The Court is left to wonder why Hanley withheld the facts now alleged in his amended complaint and failed to plead them originally when he clearly was aware of them. Such conduct is sanctionable under Rule 11 of the Federal Rules of Civil Procedure. See Brunt v. Serv. Emp. Int'l Union, 284 F.3d 715, 721 (7th Cir.2002) (“Rule 11 imposes a duty on attorneys to ensure that any papers filed with the court are well-grounded in fact, legally tenable, and not interposed for any improper purpose. The rule is principally designed to prevent baseless filings. Sanctions will be imposed if counsel files a complaint with improper motives or without adequate investigation.”) (internal citations omitted); Hartz v. Friedman, 919 F.2d 469, 474–75 (7th Cir.1990) (Affirming an award of Rule 11 sanctions against plaintiffs' counsel for filing a complaint “which [did] not state a claim for which relief [could] be granted.”); Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 204–06 (7th Cir.1985) (Sanctions were appropriate, in part, where a “large part of [the] complaint had no basis in law, and a majority of [the] allegations [were] conclusory ones, not factual ones, and so [could] not withstand a motion to dismiss.”). Hanley is admonished not to waste this Court's time henceforth and to be proactive in his advocacy.
This Court retains jurisdiction over this cause of action. Hanley must immediately withdraw his appeal and terminate all appellate proceedings by filing a motion for voluntary dismissal with the Clerk of the Seventh Circuit pursuant to Federal Rule of Appellate Procedure 42(b).