Locklear Electric, Inc. v. Lay et al, No. 3:2009cv00531 - Document 29 (S.D. Ill. 2009)
Court Description: MEMORANDUM and ORDER denying 8 Motion to Dismiss filed by defendants. Signed by Judge Michael J. Reagan on 12/7/09. (acm)
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Locklear Electric, Inc. v. Lay et al Doc. 29 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS LOCKLEAR ELECTRIC, INC., an Illinois corporation, individually, and as the representative of a class of similarlysituated persons, Plaintiff, vs. THEODORE LAY and NORMA LAY d/ b/ a TED LAY REAL ESTATE AGENCY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 09-cv-0531-MJR MEMORANDUM and ORDER REAGAN, District Judge: I. Introduction Locklear Elect ric, Inc., has filed a put at ive class act ion complaint against Theodore and Norma Lay d/ b/ a Ted Lay Real Est at e Agency (collect ively, “ t he Lays” ), 1 complaining t hat it received an unsolicit ed fax advert isement from t he Lays on June 13, 2006. On August 4, 2009, t he undersigned Judge det ermined t hat t his Court enj oys subj ect mat t er j urisdict ion over t he above-capt ioned case, which was t imely removed from t he Circuit Court of Madison Count y, Illinois. Prior t o t his det erminat ion, on July 24, 2009, t he Lays moved t o dismiss t wo count s of Locklear’ s t hree-count complaint . 1 The Sept ember 3, 2009 deat h of Theodore Lay was suggest ed upon t he record on Sept ember 14, 2009 (Doc. 21). 1 Dockets.Justia.com That fully-briefed dismissal mot ion (Doc. 8) comes now before t he Court . II. Applicable Legal Standards and Analysis Locklear claims t hat t he Lays faxed it an unsolicit ed advert isement on June 13, 2006. Locklear believes t hat t he Lays faxed t he same or similar advert isement s t o 39 or more ot her recipient s wit hout first receiving t heir invit at ion or permission. Locklear cont ends t hat it and ot her class members have no means t o avoid receiving illegal faxes because fax machines are left on t o receive faxes t hat t heir owners desire t o receive. Locklear alleges t hat t he Lays violat ed t he Telephone Consumer Prot ect ion Act , 47 U.S.C. § 227 (“ TCPA” ) (Count I), commit t ed t he t ort of conversion (Count II) and violat ed t he Illinois Consumer Fraud and Decept ive Business Pract ices Act , 815 ILCS505/ 2 (“ ICFA” ) (Count III). Locklear seeks $500.00 in damages for each violat ion of t he TCPA and an inj unct ion barring t he Lays from sending unsolicit ed faxed advert isement s t o Illinois consumers plus at t orneys’ fees and cost s. Having answered Count I of Locklear’ s complaint , t he Lays urge t he Court t o dismiss Count s II and III for failure t o st at e a claim pursuant t o Federal Rule of Civil Procedure 12(b)(6). Dismissal is warrant ed under Rule 12(b)(6) if t he complaint fails t o set fort h “ enough fact s t o st at e a claim t o relief t hat is plausible on it s face.” Bell At lant ic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Concent ra Healt h Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). In making t his assessment , t he Dist rict Court accept s as t rue all well-pled Page 2 of 8 fact ual allegat ions and draws all reasonable inferences in plaint iff’ s favor. Tricont inent al Indust ries, Inc., Lt d. v. PriceWat erhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert . denied, 128 S. Ct. 357 (2007); Marshall v. Knight , 445 F.3d 965, 969 (7th Cir. 2006); Corcoran v. Chicago Park Dist rict , 875 F.2d 609, 611 (7th Cir. 1989). St at ed anot her way, t he quest ion on a Rule 12(b)(6) mot ion is whet her t he complaint gives t he defendant fair not ice of what t he suit is about and t he grounds on which t he suit rest s. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Mosely v. Board of Educat ion of Cit y of Chicago, 434 F.3d 527, 533 (7th Cir. 2006). Addit ionally, alt hough federal complaint s need only plead claims not fact s, t he pleading regime creat ed by Bell At lant ic requires t he complaint t o allege a plausible t heory of liabilit y against t he defendant . Sheridan v. Marat hon Pet roleum Co., LLC, 530 F.3d 590, 596 (7th Cir. 2008). See also Limest one Dev. Corp. v. Village of Lemont , Ill., 520 F.3d 797, 803-04 (7th Cir. 2008). In t he inst ant case, t he issues are dual - whet her Count II must be dismissed because it is barred by t he doct rine of de minimis non curat lex, or t he law does not concern it self wit h t rifles, and whet her Count III must be dismissed because t he alleged conduct does not violat e t he ICFA. As explained below, dismissal is not warrant ed. A. Conversion Conversion under Illinois law is “ t he unaut horized deprivat ion of propert y from a person ent it led t o it s possession.” IOS Capit al, Inc. v. Phoenix Print ing, Inc., Page 3 of 8 808 N.E.2d 606, 610 (Ill.App. 4 Dist.2004), cit ing Sandy Creek Condominium Ass'n v. St olt & Egner, Inc., 642 N.E.2d 171, 174 (1994). To st at e a claim for conversion, t he plaint iff must allege (1) a right in t he propert y, (2) a right t o immediat e possession, (3) wrongful cont rol by t he defendant , and (4) a demand for possession.” Id., cit ing Cirrincione v. Johnson, 703 N.E.2d 67, 70 (1998); Green v. Ant hony Clark Int ern. Ins. Brokers, Lt d., 2009 WL 2515594, *3 (N.D.Ill. 2009). The Lays’ sole argument against conversion is t hat t he law does not concern it self wit h t rifles, t hat is, t hat Locklear’ s damages are “ miniscule t o t he point of nonexist ent .” The Court disagrees, finding persuasive t he analysis of Judge Kennelly in t he Green case. By sending t he unsolicit ed fax, t he Lays convert ed Locklear’ s t oner and paper in it s fax machine. See Green, 2009 WL 2515594 at *3. Locklear claims a right in it s fax machine and it s supplies and t o immediat e possession t hereof. See id. Locklear was deprived of t hose supplies by t he Lays’ sending t he unsolicit ed fax, t hereby suffering economic damage. See id. And t he Lays should have known t hat t heir conduct was wrongful and wit hout Locklear’ s consent . See id. “ Even very small individual harms can be considered subst ant ial, if t hey are part of a pract ice t hat , in t he aggregat e, causes subst ant ial losses t o t he public as a whole.” Cent erline Equip. Corp. v. Banner Pers. Serv., Inc., 545 F.Supp.2d 768, 780 (N.D.Ill. 2008) (citation omitted). St at ed simply, st ealing a dollar from a million people ought not preclude recovery where st ealing a million dollars from one person would not . Page 4 of 8 The Court will not assume at t his st age of t he proceeding t hat a class claim could not be more subst ant ial t han de minimis. Cent erline, 545 F.Supp.2d at 782, cit ing Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 41-42, n. 9 (1st Cir.2003) and Egge v. Healt hspan Servs., 208 F.R.D. 265, 271 (D.Minn.2002) (certifying a class action by which each individual plaintiff stood to recover approximately twenty-one cents). For t hese reasons, t he Lays’ mot ion t o dismiss t he conversion claim must be denied. B. ICFA Claim In Windy Cit y Met al Fabricat ors & Supply, Inc. v. CIT Technical Financing Services, Inc., 536 F.3d 663 (7th Cir. 2008), t he Unit ed St at es Court of Appeals for t he Sevent h Circuit examined what is needed t o st at e a claim under t he ICFA. The Sevent h Circuit referenced t he purposes of t he ICFA and t hen focused on t he conduct covered t hereunder: The Illinois Consumer Fraud Act “ is a regulat ory and remedial st at ut e int ended t o prot ect consumers ... against fraud, unfair met hods of compet it ion, and ot her unfair and decept ive business pract ices.” Robinson v. Toyot a Mot or Credit Corp., ... 775 N.E.2d 951, 960 (Ill. 2002). The Supreme Court of Illinois has held t hat recovery under t he Consumer Fraud Act “ may be had for unfair as well as decept ive conduct .” Id.... [T]hree considerat ions guide an Illinois court 's det erminat ion of whet her conduct is unfair under t he Consumer Fraud Act : “ (1) whet her t he pract ice offends public policy; (2) whet her it is immoral, unet hical, oppressive, or unscrupulous; (3) whet her it causes subst ant ial inj ury t o consumers.” Page 5 of 8 536 F.3d at 669. So, t he ICFA prot ect s consumers against fraud and ot her abusive act s by businesses t hat market product s t o t he public. BASF AG v. Great American Assur. Co., 522 F.3d 813, 821 (7th Cir. 2008). “ All t hree crit eria do not need t o be sat isfied t o support a finding of unfairness. ‘ A pract ice may be unfair because of t he degree t o which it meet s one of t he crit eria or because t o a lesser ext ent it meet s all t hree.’ ” Galvan v. Nort hwest ern Memorial Hosp., 888 N.E.2d 529, 536 (Ill.App. 1 Dist. 2008), quot ing Robinson, 775 N.E.2d 951. The Lays cont end t hat sending unsolicit ed faxes does not const it ut e an unfair pract ice as underst ood under t he ICFA. The Court disagrees and finds t hat all t hree fact ors are sat isfied in t he mat t er sub j udice. “ The pract ice of sending unsolicit ed advert isement faxes is generally prohibit ed under t he TCPA, 47 U.S.C. § 227(b)(1)(C), and is a misdemeanor criminal offense under Illinois law.” R. Rudnick & Co. v. G.F. Prot ect ion, Inc., 2009 WL 112380, *1 (N.D.Ill. 2009), cit ing 720 Ill. Comp. Stat. 5/ 26-3(b). “ These federal and st at e st at ut es are evidence t hat t he sending of unsolicit ed advert isement facsimiles is count er t o public policy.” Id. For purposes of t he current mot ion t o dismiss, sending unsolicit ed faxes also appears oppressive as t he t erm is underst ood under t he ICFA. It implicat es t he right t o privacy insofar as it violat es a person’ s seclusion. Valley Forge Ins. Co. v. Swiderski Page 6 of 8 Elect ronics, Inc., 860 N.E.2d 307, 315-316 (Ill. 2006), cit ing Park Universit y Ent erprises, Inc. v. American Casualt y Co. of Reading, Pennsylvania, 442 F.3d 1239, 1249 (10th Cir. 2006) (“Courts have consistently held the TCPA protects a species of privacy interests in the sense of seclusion”); Resource Bankshares Corp. v. St . Paul Mercury Insurance Co., 407 F.3d 631, 639-40 (4th Cir. 2005) (“[T]he harm occasioned by unsolicited faxes involves protection of some sort of ‘privacy.’ Junk faxes cause some economic damage and what might be called some kind of harm to privacy. The TCPA's private right of action obviously meant to remedy and prevent these twin harms”) (additional citations omitted). Furt hermore, t hose receiving unsolicit ed faxes have no way t o prevent t heir recept ion, and no remedy available aft er t he fax is received. Id. at 316. As explained above, small harms may, in t he aggregat e, cause subst ant ial losses. Cent erline, 545 F.Supp.2d at 780 (citation omitted). Locklear alleges t hat t he Lays’ act ions affect ed, besides it self, more t han 39 ot her recipient s. As such, Locklear has sufficient ly alleged t he possibilit y of subst ant ial inj ury. Upon considering t hese fact ors, t he Court concludes t hat t he Lays’ alleged act ivit y may be shown t o be an unfair pract ice under t he ICFA. Accordingly, t heir mot ion t o dismiss t he ICFA claim must be denied. Page 7 of 8 III. Conclusion For t he above-st at ed reasons, t he Court DENIES t he Lays’ mot ion t o dismiss (Doc. 8). IT IS SO ORDERED. DATED this 7th day of December, 2009. S/ Michael J. Reagan MICHAEL J. REAGAN United States District Judge Page 8 of 8
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