MICHAEL P. McCUSKEY, Chief Judge.
The Court now considers Defendant DISH Network L.L.C.'s Motion for Judgment on the Pleadings Dismissing Claims of Liability Based Upon the Conduct of Third Parties Not Identified in the Complaint. See d/e 70.
Plaintiffs the United States of America, the State of California, the State of Illinois, the State of North Carolina and the State of Ohio (collectively "Plaintiffs") allege that Defendant DISH Network L.L.C. ("DISH") is a seller of satellite television programming to consumers throughout the United States and that DISH accomplishes this by using a network of dealers. See Complaint (d/e 1) ¶¶ 31, 32, 33(a), 34, 35. Plaintiffs also allege:
Id. at ¶ 37.
Plaintiffs further allege that Vision Quest, New Edge Satellite and Planet Earth (but not DISH TV Now or Star Satellite) placed outbound calls to telephone numbers on the "Do Not Call Registry" and that DISH TV Now and Star Satellite (but not Vision Quest, New Edge Satellite, or Planet Earth Satellite, or DISH itself) "abandoned outbound telemarketing calls to consumers by failing to connect the call to a representative within two (2) seconds of the consumer's completed greeting." Id. at ¶¶ 47-48.
Paragraph 58 of Plaintiffs' Complaint alleges that:
Id.
On May 21, 2009, DISH moved to dismiss Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6). See d/e 9 (the "Rule 12(b)(6) Motion"). The Court denied DISH's Motion, finding that Plaintiffs Complaint sufficiently stated claims under the notice pleading requirements of Federal Rule of Civil Procedure 8(a). See United States v. Dish Network, L.L.C., 667 F.Supp.2d 952, 964 (2009) (Scott, J.).
On December 23, 2011, DISH filed the instant Motion. See d/e 70 (the "Rule 12(c) Motion"). In it, DISH raised an argument it never raised in its Rule 12(b)(6) Motion. DISH contended that all claims seeking to impose liability on DISH for the actions of unidentified third parties should be dismissed pursuant to Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and its progeny. DISH argued that the Complaint's failure to specifically identify third parties and the omission of the third parties' particularized conduct violates Twombly. See DISH's Memorandum at 4.
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment after the complaint and answer have been filed by the parties. Id. Rule 12(c) motions are reviewed under the same standard courts employ for assessing a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.2009) (citation omitted). Thus, the court views the facts in the complaint in the light most favorable to the nonmoving party. Id. (citation omitted).
Although DISH has filed a Rule 12(c) Motion, it asks the Court to do more than decide whether Plaintiffs' Complaint should be dismissed for omitting the identities of third parties. DISH also asks the Court to resolve a discovery dispute. The Court will decide the Rule 12(c) Motion and then resolve the discovery issue.
DISH moves to dismiss all claims that "seek to impose liability on DISH arising out of conduct by third parties not specifically identified in the Complaint." See DISH's Memorandum at 16. DISH's Motion is predicated on Brooks v. Ross, 578 F.3d 574 (7th Cir.2009); Twombly, 550 U.S. 544, 127 S.Ct. 1955; Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); and Security Service Federal Credit Union v. First Am. Mortgage Funding, LLC, 2010 WL 1268082 (D.Colo. March 30, 2010). See DISH's Memorandum at 4.
In Brooks, the Seventh Circuit considered Twombly, Iqbal and Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) and found that those decisions collectively required:
See Brooks, 578 F.3d at 581.
Although this Court did not cite Brooks when it denied DISH's Rule 12(b)(6) Motion, the Court nonetheless applied the Brooks criteria. See Dish Network, L.L.C., 667 F.Supp.2d at 964 (finding Plaintiffs' claims were sufficient). Once that criteria was satisfied, Plaintiffs' claims were sufficient to overcome a motion under Rule 12(b)(6) or its virtual twin, Rule 12(c).
Thus, while DISH may want Plaintiffs to allege additional facts, Plaintiffs are not required to do so. Despite the absence of the third parties' identities, DISH still has notice of Plaintiffs' claims, the same facts still plausibly state the same claims, and the claims still do more than recite elements and conclusions of law. Therefore, Plaintiffs' claims satisfy Twombly, Iqbal, Erickson and Brooks. Information beyond that which is contained in Plaintiffs' Complaint can be sought through discovery. See, i.e., Kramer v. Autobytel, Inc., ___ F.Supp.2d ___, 2010 WL 5463116 (N.D.Cal.2010) ("because the [Telephone Consumer Protection Act] is designed to combat mass unsolicited commercial telemarketing, at times involving thousands of calls or text messages, notice pleading standards do not require a plaintiff to allege details at the pleading stage about the time and context of every text message").
As for Security Service's discussion of Twombly and Iqbal, the court said that a claim is defective if it simply gives a formulaic recitation of elements and omits allegations which plausibly support relief. See Security Service, 2010 WL 1268082 at *3, citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955 and Iqbal, ___ U.S. ___, 129 S.Ct. at 1949. Nothing in Security Service's discussion of Twombly and Iqbal suggests that a claim is defective if it omits third parties' identities. See Security Service, 2010 WL 1268082 at *3. Thus, contrary to DISH's assertion, so long as a claim satisfies Rule 8(a)(2) and the pleading standards set forth in Twombly and Iqbal, a claim will not be dismissed merely because third parties are not identified by name.
"District judges enjoy broad discretion in settling discovery disputes." Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1052 (7th Cir.1998). When deciding the meaning of a contested allegation, the language in a complaint should be read in a natural and ordinary fashion. See Abcarian v. McDonald, 617 F.3d 931, 937 (7th Cir.2010); see also, Tamayo v. Blagojevich, 526 F.3d 1074, 1092 (7th Cir. 2008).
DISH asks the Court to resolve a discovery issue arising from ¶ 37 of Plaintiffs' Complaint. That paragraph alleges that:
Id.
In an Opinion issued on December 9, 2010, United States Magistrate Judge Cudmore stated:
Id. (d/e 65) at 9, n. 2.
DISH argues that deciding the meaning of the phrase "among others" in relation to the balance of ¶ 37's language will determine whether Plaintiffs are entitled to discovery from five dealers or the approximately 7,500 current and former dealers who sell or sold DISH's services. See DISH's Memorandum at 6. Since Judge Cudmore's Opinion decided that the allegations in Counts IV and V of the Complaint entitled Plaintiffs to discoverable information about all current and former dealers within the Complaint's applicable time period, discoverability is not really in doubt. Id. at 8-9. The only open question following Judge Cudmore's Opinion is whether the claims in Counts I and II are limited to the five dealers specifically identified in ¶ 37.
Although the issue is significant, it is not complex. A natural reading of ¶ 37's language plausibly shows that Plaintiffs allege DISH entered into contracts with numerous Marketing Dealers. The five dealers were simply "among others" with whom DISH had contracts. As such, Plaintiffs' claims are not limited to the five dealers specifically identified in ¶ 37 and discovery is not limited to those five dealers. Such a finding is appropriate given DISH's earlier argument that all third parties must be identified. While that argument failed, it revealed that all parties believe the actions of third party Marketing Dealers are relevant and discoverable.
THEREFORE, Defendant DISH Network L.L.C.'s Motion for Judgment on the Pleadings Dismissing Claims of Liability Based Upon the Conduct of Third Parties Not Identified in the Complaint (d/e 70) is DENIED.