Carlson v. Mayflower Tours Inc. et al

Filing 41

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 4/10/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DIANNA CARLSON,
Plaintiff,
v.
MAYFLOWER TOURS INC., et al.,
Defendants.

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No.

12 C 6656

MEMORANDUM ORDER
On March 11 this Court granted counsel for plaintiff Dianna
Carlson (“Carlson”) leave to file an amendment to her Complaint
that in part added a Count VII grounded in the Illinois Consumer
Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 to
505/12.

Mayflower Tours Inc. (“Mayflower”), one of the three

defendants in this action, responded to that proposed addition by
moving that Count VII be stricken.

Carlson’s counsel has now

responded to that motion, so that the matter is ripe for
decision.
Although it is common (largely as a matter of convenience)
to shorten the title of the cited Illinois statute to the
“Illinois Consumer Fraud Act,” it is a serious mistake to
springboard from that usage to the notion that Fed. R. Civ. P.
(“Rule”) 9(b) standards apply to the pleading that invokes the
statute.

After all, the Illinois Supreme Court is the ultimate

authority as to the meaning and scope of Illinois statutes, and
Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 416-18,

775 N.E.2d 951, 960-61 (2002) has confirmed that recovery under
the statute “may be had for unfair as well as deceptive conduct.”
Indeed, our Court of Appeals has plumbed this issue in depth
in Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.
Servs., Inc., 536 F.3d 663, 669-72 (7th Cir. 2008).

Judge

Ripple’s opinion there could well have been written for this
case, and Carlson’s allegations (taken together with reasonable
inferences as is called for by a Rule 12(b)(6) motion) satisfy
the pleading standards of Rule 8(a).
It is particularly distressing to find that the experienced
counsel who represents Mayflower starts his memorandum with
citations to a number of Illinois cases that call for specific
fact pleading.

Those standards have no place in federal

practice, and only a bit of research would have brought counsel
to Judge Ripple’s lucid opinion explaining why that is so.

Worse

still, Mayflower’s counsel compounds that error by citing
exclusively to state court rather than to federal court decisions
as purportedly setting the pleading standards here, as they do
not.1
Accordingly Mayflower’s motion to strike is denied, and it
is ordered to answer Amended Complaint Count VII on or before

1

To be more precise, Mayflower’s counsel does cite once to
the federal Twombly-Iqbal canon--but he does so only as a
waystation on his return to Illinois caselaw. And as for
Twombly-Iqbal, Carlson’s Count VII plainly satisfies the
“plausibility” standard that those cases have announced.
2

April 24, 2013.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

April 10, 2013

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