Dunstan et al v. comScore, Inc.

Filing 122

MOTION by Plaintiff Jeff Dunstan to dismiss RE: Motion to Voluntarily Dismiss Count IV (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Thomassen, Benjamin)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of similarly
situated individuals,

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Plaintiffs,
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v.
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COMSCORE, INC., a Delaware corporation,
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Defendant.
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__________________________________________)

Case No. 1:11-5807
Hon. James F. Holderman

PLAINTIFF JEFF DUNSTAN’S MOTION TO
VOLUNTARILY DISMISS COUNT IV OF THE COMPLAINT
Plaintiff Jeff Dunstan (“Dunstan”), pursuant to the Court’s general discretion to grant a
motion for voluntary dismissal of a claim and Magistrate Judge Kim’s recent order (Dkt. No.
121), respectfully moves the Court for an order granting him leave to voluntarily withdraw and
dismiss Count IV of his class action complaint (the “Complaint”) brought under the Illinois
Consumer Fraud and Deceptive Practices Act (the “ICFA”), 815 ILCS 505/1 et seq., on behalf of
a putative subclass of individuals (the “Dunstan Subclass”). In support of this Motion, Dunstan
states as follows:
I.

INTRODUCTION
As the Court is aware, this lawsuit challenges Defendant comScore Inc.’s (“comScore”)

unauthorized collection and dissemination of Plaintiffs’ personal information through its use of
spyware. Plaintiff Dunstan—who was forced to spend forty dollars ($40) on anti-virus software
to remove comScore’s software from his computer (Compl. ¶¶ 74, 114–119)—seeks to narrow
the issues in dispute and drop Count IV of the Complaint, which prays for relief under the ICFA
on behalf of a subclass of consumers who “incurred costs in removing the Surveillance

Software.” Unfortunately, rather than dealing with the dismissal of Count IV efficiently—i.e., by
stipulation—comScore sees it as an opportunity to force Plaintiffs to file an amended complaint,
so that it may file a third Rule 12 motion to dismiss. As such, and despite Plaintiff’s several
attempts, comScore will not stipulate to the dismissal of Count IV, and instead insists that
Plaintiffs formally file an amended complaint dropping the claim.
comScore’s tactic will only slow down the litigation and is improper in light of the
reasons that Dunstan is dropping Count IV. First, voluntary dismissal of the ICFA subclass will
streamline and focus Plaintiffs’ upcoming motion for class certification. Put simply, while
Dunstan doubtlessly has an individual claim against comScore regarding monetary damages he
suffered as a result of the Surveillance Software (and a claim on behalf of a subclass that may
have suffered similar money damages), the ICFA claim—which is reliant on allegations of outof-pocket monetary damages—presents certain ascertainability issues that are not present
amongst the other claims. Second, and specific to his individual claim against comScore under
the ICFA, voluntary dismissal of the claim will put an end to comScore’s insistence on receiving
Dunstan’s unredacted anti-virus logs—a tactic only designed to embarrass and harass him.
Because the anti-virus logs are only relevant to Dunstan’s ICFA claim (i.e., relating to money
Dunstan spent on computer repair), dismissal of his claim negates comScore’s supposed need for
them.
Ultimately, because these out-of-pocket claims under the ICFA are not central to the rest
of the Complaint (and, really, go to the merits issue of damages), Dunstan now moves the Court
to voluntarily dismiss that claim and drop the associated subclass. comScore’s demand for a
formal amendment is a calculated move designed to set up a third Motion to Dismiss (on issues
that have already been twice decided, no less). As this case nears the close of class discovery and

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the Parties are on the eve of class certification, motion practice of that sort would be a total waste
of time and resources. Accordingly, the Court should have little issue allowing for the narrowing
of issues and dismissal of Dunstan’s ICFA claim as alleged in Count IV.
II.

FACTUAL AND PROCEDURAL BACKGROUND
As stated above, Dunstan represents a subclass of individuals that “incurred costs in

removing [comScore’s] Surveillance Software” and alleges that he was forced to pay forty
dollars ($40) for anti-virus software to remove that software from his computer. (Id. at ¶¶ 74,
114–119.) As a part of his discovery production, Dunstan provided comScore with the logs from
the anti-virus program he purchased, which show that comScore’s software was detected,
marked as a threat, and removed from his computer. (Declaration of Rafey Balabanian at ¶ 2
(“Balabanian Decl.”), a true and accurate copy of which is attached hereto as Exhibit A.) Before
producing those logs, however, Dunstan’s counsel redacted certain information detailing
Dunstan’s private and sensitive Internet usage data—coincidentally, the same information
comScore’s software would regularly collect from Dunstan without his knowledge or permission
before it was removed from his computer—before producing the logs to comScore. (Id. at ¶ 3.)
The Parties thereafter exchanged correspondence relating to the redacted portions of the
anti-virus logs. As summarized in its letter dated May 31, 2012, comScore insisted that it be
provided complete and unredacted copies of the logs, insofar as they were relevant to
certification of the Dunstan Subclass—i.e., those “individuals and entities . . . that have incurred
costs in removing [comScore’s] Surveillance Software.” (Balabanian Decl. at ¶ 4.) In response,
Dunstan’s counsel explained that the produced and redacted virus logs sufficiently responded to
comScore’s discovery requests since they supported the allegations that he purchased software
that helped him detect and get rid of comScore’s software. (Id. at ¶ 5.) Beyond that, though,

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comScore’s requests for the anti-virus logs only concerned the nature of Dunstan’s damages and,
as such, were not relevant during the class certification stage of discovery.1 (Id.) Moreover,
Dunstan’s counsel indicated that the redacted portions of the anti-virus logs contained
information relating to Dunstan’s “private and sensitive Internet usage data” and, to balance his
privacy interests against comScore’s over-reaching requests, they would not be turned over. (Id.
at ¶ 5.)
At the same time, Plaintiffs’ counsel also evaluated the relative strength of the Dunstan
Subclass’s claims under the ICFA, particularly relating to the upcoming motion and briefing for
class certification. (Id. at ¶ 6.) After further scrutiny, Plaintiffs’ counsel determined that the
ICFA claim—unlike the claims brought on behalf of the putative Class—presented unique
challenges to Rule 23’s ascertainably requirement insofar as it may be difficult to identify those
individuals who, like Dunstan, suffered money damages trying to repair their computers. (Id.)
Thus, in order to strengthen the Class’s overall legal theory, and because the facts underlying the
ICFA claim are not central to Plaintiffs’ other claims, Dunstan decided not to proceed with
certification of the Subclass or pursue the Subclass’s claim under the ICFA. (Id.) As such,
Dunstan considered comScore’s requests for the unredacted anti-virus logs moot. (Id. at ¶ 7.)
Subsequently, during a motion hearing held on July 26, 2012, Dunstan’s counsel
informed the Court of this issue and specifically indicated Plaintiffs’ intention of amending the
complaint to: (1) drop Count IV and (2) add a new count for trespass to chattels relating to the
operation of comScore’s software. (Id. at ¶ 8.) But Plaintiffs eventually decided against adding
the proposed trespass to chattels claim and, accordingly, informed comScore that amending the
1

Magistrate Judge Kim granted comScore’s motion to bifurcate discovery between class and
merits issues on March 2, 2012. (Dkt. No. 87.) Pursuant to this Court’s order, the class discovery period is
set to close on November 30, 2012. (Dkt. No. 118.)

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pleadings was not necessary. (Id. at ¶ 10.) Rather, since the claims were being narrowed and
factual allegations remained unchanged, Plaintiffs’ counsel invited comScore to join a stipulation
permitting Plaintiffs to voluntarily withdraw the ICFA claim. (Id.)
Rather than respond to Plaintiffs’ stipulation offer, comScore raised the issue directly to
Magistrate Judge Kim at the August 13, 2012 status hearing. (See August 13, 2012 Transcript
before Magistrate Judge Kim at 19:17–20:12, a true and accurate copy of which is attached
hereto as Exhibit B.) comScore requested that Judge Kim set a deadline for Plaintiffs to amend
their complaint to (1) add the proposed trespass to chattels claim (even though Plaintiffs had
already informed comScore that they had decided against adding such a claim), and (2) drop the
ICFA claim brought on behalf of the Dunstan Subclass. (Id.) In response, Plaintiff’s counsel
explained that amended pleadings were not necessary and that, as a general matter, Plaintiffs
could not be forced to file one.
Moreover, Plaintiffs repeated their offer to—by stipulation—voluntarily dismiss the
single count brought on behalf of the Dunstan Subclass. (Id. at 20:15–21:14.) Although
comScore’s counsel nevertheless insisted that Plaintiffs be forced to amend (id. at 21:16–22,
22:22.), Judge Kim even explained that “it’s really up to the plaintiff, Mr. Dunstan, what he
wants to do. Either he can amend the complaint or he can dismiss portions of his complaint [by
stipulation or with leave of the Court]; and depending on the scope of that dismissal, it would be
up to defendant to then decide [whether to] move forward with [its] motion to compel [the antivirus logs].” (Id. 22:23–23:6.) Accordingly, Judge Kim ordered Plaintiffs to draft and provide a
stipulation to dismiss to comScore by August 14, 2012.2 (Id. at 23:14–24:1.)

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As ordered, on August 14, 2012, Plaintiffs circulated a draft stipulation to voluntarily dismiss
Count IV of the Complaint and agree to not pursue relief on behalf of the Dunstan Subclass. (Balabanian
Decl. at ¶ 12.) comScore responded to that draft on August 21, 2012. (Id.)

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On August 23, 2012, the Parties again appeared before Judge Kim and comScore again
insisted that Plaintiffs file an amended complaint. (See August 23, 2012 Transcript before Judge
Kim, a true and accurate copy of which is attached here to as Exhibit C.) In support of its
renewed (but previously rejected) request, comScore cited the purported confusion attendant to a
stipulated voluntary dismissal—namely, the need to (1) change the word “Classes” to “Class”
throughout the complaint, (2) eliminate one sentence defining the Dunstan subclass, and (3)
voluntarily dismiss Count IV.3 (Id. at 3:7–21.) More telling of its motives, though, comScore
revealed, for the first time, the real strategic purpose underlying its position—its desire to file a
third Rule 12(b)(6) motion.4 (Id. at 3:23–4:2.) In response, Judge Kim simply explained that if
comScore would not agree to the proposed stipulated dismissal of Count IV, “then the next step
is for Mr. [Dunstan] to go ahead and file a motion for . . . leave of Court to dismiss his claim
regarding having to expend certain dollars to have something removed from his computer.” (Id.
at 5:1–9.) As such, Judge Kim ordered Plaintiffs to file the instant motion by September 7, 2012.
(Dkt. No. 121.)
The following day, comScore confirmed that it would not join any stipulation and,
instead, “would like the opportunity to answer or otherwise respond to an amended complaint
with the remaining counts absent the factual allegations relating to damages.” (Balabanian Decl.
at ¶ 13.) Short of that, comScore insisted on receiving the unredacted portions of Dunstan’s antivirus logs, even though the information sought has no relevance to the dispute and is far outside
the scope of class discovery. As a result, this Motion followed.
3

comScore additionally suggested that general factual allegations specific to Dunstan—none of
which appear within Count IV—would have to be removed from the complaint. (Ex. C at 3:13–15.)
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comScore additionally (and correctly) surmised that if the Parties proceeded by way of
stipulation—i.e., simply agreed to permit Plaintiffs to withdraw Count IV and the Dunstan Subclass—
then Plaintiffs would contest any attempt by comScore to file yet another motion to dismiss. (Id. at 4:3–
12.)

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III.

ARGUMENT
Dunstan’s request to voluntarily withdraw and dismiss his claim under the ICFA is

straightforward, causes no prejudice to comScore, and should be granted. Courts in the Seventh
Circuit have the discretion to allow for voluntary dismissal of individual claims and have
previously granted a plaintiff’s motion to voluntarily withdraw a count of a complaint without
prejudice. See, e.g., Tibor Mach. Products, Inc. v. Freudenberg-NOK Gen. P’ship, 967 F. Supp.
1006, 1022 (N.D. Ill. 1997). Here, voluntary dismissal of Dunstan’s claim under the ICFA (i.e.,
Count IV of the Complaint), would (1) narrow the issues before the Court and focus the Parties’
anticipated class certification briefing, (2) eliminate any need for comScore to insist upon
receiving unredacted copies of the anti-virus logs that initially prompted these discussions, and
(3) would require only minor alterations to the pleadings. Importantly, this is not a case where a
partial voluntary dismissal of a claim might result in prejudice to the defendant—such as where,
for example, a dismissal would divest a court of its jurisdiction over a case. See, e.g., Ethridge v.
Harbor House Restaurant, 861 F.2d 1389, 1392 (9th Cir 1988). Rather, voluntary dismissal of
Count IV—again, the only count brought on behalf of the Dunstan subclass—would not affect
this Court’s power over this case, change any factual allegations in the complaint, or require
additional discovery.5
To be clear, Plaintiffs have no interest in amending their complaint under Rule 15 if
doing so (1) will not resolve the above-described discovery dispute relating to Dunstan’s antivirus logs, and (2) will result in comScore re-asserting twice failed Rule 12 arguments. In that
light, it should be noted that some courts construe motions to voluntarily dismiss individual
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Initially, comScore insisted on knowing whether Dunstan would or would not prosecute Count IV
to determine whether it would (or, presumably, would not) ask him about the anti-virus program he
purchased during his deposition on August 8, 2012. (Balabanian Decl. at ¶ 9.) Even without a definite
answer, however, comScore proceeded to ask Dunstan numerous questions about his purchase and use of
the anti-virus software. (Id. at ¶ 11.)

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claims—sometimes brought under Rule 41—as motions to amend under Rule 15. See, e.g.,
Loutfy v. R.R. Donnelley & Sons, Co., 148 F.R.D. 599, 602 (N.D. Ill. 1993). From that
perspective, a prospective amendment in this case would only: (1) change the word “classes” to
“class” throughout the complaint, (2) eliminate the sentence defining the Dunstan subclass, and
(3) eliminate Count IV, Dunstan’s ICFA claim, which is the only claim reliant on his allegations
that comScore’s software caused him to suffer out-of-pocket monetary damages in the form of
computer repairs. Such changes—whether effected through a voluntary dismissal, as Dunstan
prefers, or a Rule 15 amendment, which comScore demands—would provide no basis from
which comScore could compel production of Dunstan’s unredacted anti-virus logs (which bear
no relation to class certification issues) or assert/re-assert Rule 12 arguments (which would
require either new legal theories and/or altered factual allegations).
The reality is that this entire exercise has been about comScore’s desire to obtain (what
they hope is) potentially incriminating/embarrassing evidence from Dunstan, by accessing his
unredacted anti-virus logs, or better yet, getting a third shot at dismissing the Complaint.
comScore’s recent indication that it would not stipulate to voluntary dismissal of Dunstan’s
ICFA claim—even before entertaining any revisions to its own proposed draft stipulation, as
ordered by Judge Kim—underscores that strategy. (See Balabanian Decl. at ¶ 13.) Ultimately,
continued focus on compelling Dunstan to produce his unredacted anti-virus logs and amending
the Complaint under Rule 15 just to set up another round of Rule 12 motions is and would be a
complete waste of the Parties’ and the Court’s time and resources. The Court should put a stop
to it by allowing Dunstan to dismiss his ICFA claim without prejudice and drop the Dunstan
Subclass.

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IV.

CONCLUSION
Permitting Dunstan to voluntarily dismiss Count IV of the Complaint will both narrow

the issues before this Court without adding or subtracting any factual allegations, and address
(and hopefully resolve) an on-going discovery dispute between the Parties. As such, this Court
should grant Dunstan’s Motion.
WHEREFORE, Plaintiff Dunstan respectfully requests that this Court enter an order
dismissing Count IV of the Complaint without prejudice, and deeming the putative Subclass
dismissed from the Complaint as well.

Dated: September 7, 2012

Respectfully submitted,
By: /s/ Rafey S. Balabanian
Jay Edelson
Rafey S. Balabanian
Ari J. Scharg
Chandler R. Givens
Benjamin S. Thomassen
EDELSON MCGUIRE LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I, Benjamin S. Thomassen, an attorney, hereby certify that on September 7, 2012, I
served the above and foregoing Plaintiff Jeff Dunstan’s Motion to Voluntarily Dismiss Count
IV of the Complaint by causing true and accurate copies of such paper to be filed and
transmitted to all counsel of record via the Court’s CM/ECF electronic filing system, on this the
7th day of September, 2012.

/s/ Benjamin S. Thomassen
Benjamin S. Thomassen

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