Rule 12(b)(6) allows a defendant to seek dismissal of a complaint that fails tostate a claim upon which relief can be granted. Fed R. Civ. P. 12(b)(6). In resolving aRule 12(b)(6) motion, the court must “construe the complaint in the light most favorableto the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possibleinferences in [the plaintiff’s] favor.”
Tamayo v. Blagojevich
, 526 F.3d 1074, 1081 (7thCir. 2008). Legal conclusions, however, are not entitled to any assumption of truth.
Ashcroft v. Iqbal
, 556 U.S. ----, 129 S. Ct. 1937, 1040 (2009). To survive a Rule 12(b)(6)motion, “the complaint need only contain a ‘short and plain statement of the claimshowing that the pleader is entitled to relief.’”
EEOC v. Concentra Health Servs., Inc.
, 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). However, theallegations must provide the defendant with “fair notice of what the . . . claim is and thegrounds upon which it rests.”
Bell Atl. Corp. v. Twombly
, 550 U.S. 544, 555 (2007)(citing
Conley v. Gibson
, 355 U.S. 41, 47 (1957)). The plaintiff generally need not pleadparticularized facts, but the factual allegations in the complaint must be sufficient to“state a claim to relief that is plausible on its face . . . .”
, 550 U.S. at 570 .
The relevant portion of the TCPA provides as follows:It shall be unlawful for any person within the United States, or any personoutside the United States if the recipient is within the United States—(A) to make any call (other than a call made for emergencypurposes or made with the prior express consent of the called party) usingany automatic telephone dialing system or an artificial or prerecordedvoice—. . .
Case 1:09-cv-03413 Document 32 Filed 12/14/09 Page 2 of 20