Zidek v. Analgesic Healthcare, Inc. et al
Filing
53
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/6/2014:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MYRNA ZIDEK, Successor to DR.
DENNIS ZIDEK, and DR. WILLIAM P.
GRESS, on behalf of Plaintiffs
and Class Members defined
herein,
Case No. 13 C 7742
Plaintiffs,
Hon. Harry D. Leinenweber
v.
ANALGESIC HEALTHCARE, INC., and
JOHN DOES 1-10,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss.
For the
reasons stated herein, the Motion is denied.
I.
BACKGROUND
This case seeks redress for the alleged harm suffered when
several doctors received unsolicited fax advertisements for medical
equipment.
The
faxes,
allegedly
sent
by
Defendant
Analgesic
Healthcare, include a message at the bottom telling the recipient
“don’t hesitate to call me with any questions you may have,” and then
gives a name and phone number.
Otherwise, the faxes do not contain
any information indicating how the recipient might stop receiving
unwanted faxes.
The original Complaint, filed as a putative class
action by Plaintiff Zidek on October 29, 2013, alleged that he
received an unsolicited fax from Defendant on June 9, 2011.
On
February 11, 2014, an Amended Complaint was filed that, as relevant
here, added Dr. Gress as a named plaintiff and alleged that he
received unsolicited faxes from Defendant on November 6, 2009 and
January 16, 2012.
Both Complaints enumerate five counts, one each
for violations of the Telephone Consumer Protection Act (“TCPA”), the
Illinois Consumer Fraud Act (“ICFA”), and the common law torts of
conversion, private nuisance, and trespass to chattels.
II.
LEGAL STANDARD
A complaint must provide a short and plain statement of the
claim showing the plaintiff is entitled to relief.
P. 8(a)(2).
FED. R. CIV.
The complaint must “plead[] factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
The Court construes a complaint in the light most
favorable to the plaintiff and accepts all well-pled facts as true.
Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009).
III.
A.
DISCUSSION
Statute of Limitations
Defendant argues that the statute of limitations has expired for
the fax received by Dr. Gress on November 6, 2009.
a four-year statute of limitations.
The TCPA contains
28 U.S.C. § 1658.
The original
Complaint was filed on October 29, 2013, roughly three years and
fifty-one weeks after Dr. Gress received the fax on November 6, 2009.
Because Dr. Gress was a member of the class alleged in the original
Complaint, the limitations period was tolled from the time when the
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original Complaint was filed until the date he was added as a
plaintiff.
Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 549-50
(1974) (explaining that “the commencement of the action satisfied the
purpose of the limitation provision as to all those who might
subsequently participate in the suit”).
Therefore, the limitations
period has not expired as to the fax sent on November 6, 2009.
B.
Count I – TCPA
In Count I, Plaintiffs allege that Defendant violated TCPA by
sending unsolicited faxes that did not contain an opt-out notice.
Compl. ¶¶ 19, 23, 24.
The TCPA makes it unlawful “to use any
telephone facsimile machine, computer, or other device to send, to a
telephone facsimile machine, an unsolicited advertisement.”
U.S.C. § 227(b)(1)(C).
47
The TCPA provides exceptions (1) for those
with established business relationships or (2) where the fax number
was obtained through voluntary communication or a directory; however,
these exceptions apply only if the fax includes an appropriate optout notice.
Id.
Defendant
moves
to
dismiss
this
Count
on
the
ground
Plaintiffs did not allege that the faxes were unsolicited.
that
That
contention lacks merit, as Plaintiffs allege in paragraph 23 that the
advertisements were unsolicited.
Defendant claims further that Plaintiff consented to receiving
the
faxes
because
otherwise
Plaintiffs’ fax numbers.
Defendant
could
not
have
obtained
Such a broad argument, if accepted, would
render the TCPA meaningless, as there could be no such thing as an
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unsolicited fax.
Additionally, even when one consents to receiving
fax advertisements, the fax must include information about how to
opt-out of receiving future faxes.
47 U.S.C. § 227(b)(1)(C)(iii);
Holtzman v. Turza, 728 F.3d 682, 683 (7th Cir. 2013).
Plaintiffs
have pled adequately a plausible violation of the TCPA.
C.
Counts II-V
The remaining Counts contend that Defendant’s acts of sending
the fax advertisements may have violated the Illinois Consumer Fraud
Act and the common law torts of conversion, private nuisance, and
trespass to chattels.
Each of these Counts seeks redress for the
same conduct complained of in Count I, the transmission of the fax
advertisements. Under the federal notice pleading regime, a claim is
a set of facts producing an injury.
N.A.A.C.P. v. Am. Family Mut.
Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992).
These five Counts,
then, are not distinct “claims”; rather, they are different legal
theories, any one of which might entitle Plaintiffs to recover
damages.
Id. at 291 (explaining that “[a] ‘claim for relief’ seeks
redress of a distinct wrong” and that “a distinct legal underpinning
differs from a new claim”); see also, Rossario’s Fine Jewelry, Inc.
v. Paddock Publications, Inc., 443 F.Supp.2d 976, 977 (N.D. Ill.
2006) (noting that the plaintiff’s “single claim” based on the
transmission of an unsolicited fax was “carv[ed] up” into three
counts, one each for the TCPA, the ICFA, and conversion).
Because
Plaintiffs cannot recover twice for the same injury, it makes no
difference whether they can prevail on one legal theory or all five.
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“The plaintiff is not required to plead facts or legal theories
or cases or statutes, but merely to describe his claim briefly and
simply.”
Shah v. Inter-Continental Hotel Chicago Operating Corp.,
314 F.3d 278, 282 (7th Cir. 2002).
Based on the ruling in Part
III.A., the Complaint is sufficient to withstand the Motion to
Dismiss because it states a claim to relief (one claim for each
injury, or one for each fax sent) that is plausible.
The Court is
aware that other courts in this district, when confronted with
similar cases involving unsolicited faxes, have seen fit to use the
motion
to
dismiss
stage
as
an
opportunity
to
rule
on
the
applicability of various other legal theories in addition to the
TCPA.
But if the Court were to grant partial relief on this Motion,
it would not be “dismissing claims” but rather limiting the legal
theories available to Plaintiffs to prove their entitlement to
damages for these acts.
The federal rules allow for dismissal for
“failure to state a claim” but do not provide a basis for striking
individual legal theories.
Said another way, if Plaintiffs had omitted Counts II-V from
their Complaint, nothing would have prevented them from arguing at
summary judgment or at trial that they were entitled to relief based
on the ICFA or the common law, because the rest of the Complaint
gives Defendant notice of the factual basis for the claim against it.
By including Counts II-V (and indeed even Count I), Plaintiffs have
gone above and beyond by giving Defendant and the Court notice, not
required by the federal rules, of the theories upon which they may
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try to rely.
N.A.A.C.P., 978 F.2d at 292 (explaining that the
complaint “need not identify the law on which the claim rests”).
Because a new legal theory is not the same as a new “claim” for
federal pleading purposes, the additional Counts are not new claims
and there is nothing to dismiss.
Id. (“One set of facts producing
one injury creates one claim for relief, no matter how many laws the
deeds violate.”)
Two other points merit attention.
First, a ruling regarding
Counts II-V would not affect discovery because the underlying facts
that need to be proven are the same (it is the application of those
facts to the various laws that would differ).
Second, this Court is
sensitive to the fact that courts in this district have split over
whether sending
an
unsolicited
violation of the ICFA.
Pers. Serv.,
Inc.,
545
fax
amounts
to
conversion
or a
Compare, Centerline Equip. Corp. v. Banner
F.Supp.2d
768,
779-81
(N.D.
Ill.
2008)
(plaintiff had pled adequately that junk faxes violated the ICFA),
with Old Town Pizza of Lombard, Inc. v. Corfu-Tasty Gyro’s Inc., No.
11-C-6959,
2012
WL
638765,
at
*5-6
(N.D.
Ill.
Feb.
23,
(dismissing allegation that junk faxes violated the ICFA).
2012)
All the
more so, a ruling on the applicability of those legal theories is
best saved to the point at which the parties can argue facts, not
allegations.
Because “there is no penalty for invoking the wrong [legal
theories]” in a complaint, Volling v. Antioch Rescue Squad, --F.Supp.2d ---, No. 11-C-4920, 2013 WL 6254254, at *9 (N.D. Ill.
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Dec. 3, 2013), there is no need to measure the complaint’s factual
contentions against the extraneous legal theories articulated in
Counts II-V.
At this early stage, the Court declines to limit the
avenues to relief that Plaintiffs might pursue when it comes time for
them to prove their case.
See, id. (explaining that “it would be
premature to strike” the legal theories presented in different counts
“before discovery reveals the appropriate theory”); Shafiuddin v.
Evanston Northwestern Hosp., No. 09-C-2416, 2010 WL 333699, at *2
(N.D. Ill. Jan. 26, 2010) (“A litigant who invokes the wrong legal
theory but pleads the right facts survives a motion to dismiss
brought pursuant to Rule 12(b)(6).”).
IV.
CONCLUSION
For the reasons stated herein, the Motion to Dismiss [ECF
No. 42] is denied.
The prior Motion to Dismiss [ECF No. 22], which
was incorporated into the most recent Motion, is denied as moot.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:6/6/2014
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