Mehra v. Law Office of Keith S. Shindler, Ltd. et al
Filing
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MEMORANDUM Opinion and Order: Signed by the Honorable John W. Darrah on 4/29/2015. Mailed notice. (rb, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BHUPINDER K. MEHRA,
Plaintiff,
v.
LAW OFFICES OF KEITH S.
SHINDLER LTD. a/k/a THE SHINDLER
LAW FIRM a/k/a SHINDLER AND
JOYCE; and CAVALRY SPV I, LLC,
Defendants.
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Case No. 14-cv-7509
Judge John W. Darrah
MEMORANDUM OPINION AND ORDER
Plaintiff Bhupinder K. Mehra filed a Complaint against Defendants Law Offices of
Keith S. Shindler Ltd. (“Shindler”) and Cavalry SPV I, LLC, alleging constitutional claims under
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Illinois
Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILL. COMP. STAT. 505/1 et
seq. Cavalry moved to dismiss Count III, Plaintiff’s ICFA claim, pursuant to Federal Rule of
Civil Procedure 12(b)(6).
BACKGROUND
The following facts are taken from the Complaint, which is assumed to be true for the
purposes of a motion to dismiss. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th
Cir. 2010). Mehra is a natural person who resides in Schaumburg, Illinois. (Compl. ¶¶ 4, 15.)
Shindler is an Illinois corporation located in Schaumburg, Illinois. (Id. at ¶ 5.) Cavalry is a
New York Corporation with its principal office in Valhalla, New York, and a registered agent
located in Chicago, Illinois. (Id. at ¶ 7). Both Shindler and Cavalry are debt collectors as
defined by the FDCPA, 15 U.S.C. § 1692a(6). (Id. at ¶¶ 6, 8.)
Cavalry is attempting to collect an alleged consumer debt of $1,877.86 from Plaintiff. (Id.
at ¶ 9.) On behalf of Cavalry, Shindler filed a complaint against Plaintiff in the Circuit Court of
Cook County, specifically at the Richard J. Daley Center Courthouse. (Id. at ¶¶ 9-11.) The
Richard J. Daley Center Courthouse serves Cook County’s First Municipal District. (Id. at ¶ 12.)
Schaumburg, Illinois is located in the Circuit Court of Cook County’s Third Municipal District,
and the Rolling Meadows Courthouse is the courthouse which serves that district. (Id. at ¶¶ 1617). The Rolling Meadows Courthouse is eleven miles from Plaintiff’s home, while the
Richard J. Daley Center Courthouse is thirty-one miles from Plaintiff’s home. (Id. at ¶¶ 18-19.)
Plaintiff retained counsel and incurred attorney’s fees and costs in order to defend the collection
case at the Richard J. Daley Center Courthouse. (Id. at ¶ 25.) Plaintiff also suffered from
anxiety, mental anguish, and emotional distress as a result of Defendants’ actions. (Id. at ¶ 26.)
LEGAL STANDARDS
Rule 12(b)(6) permits a defendant to move to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Rather, the
complaint must provide a defendant “with ‘fair notice’ of the claim and its basis.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed. R. Civ. P. 8(a)(2) and Twombly,
550 U.S. at 555). When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts all
well-pleaded factual allegations as true and construes all reasonable inferences in favor of the
plaintiff. Tamayo, 526 F.3d at 1081.
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ANALYSIS
Plaintiff alleges that filing the debt collection action in the Richard J. Daley Center
Courthouse, instead of the closer Rolling Meadows Courthouse, was an unfair or deceptive act
under the ICFA. Fraud claims under the ICFA are analyzed under the heightened pleading
standard set forth in Federal Rule of Civil Procedure 9(b). Camasta v. Jos. A. Bank Clothiers,
Inc., 761 F.3d 732, 736 (7th Cir. 2014). Federal Rule of Civil Procedure 9(b) requires a plaintiff
to “state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). Rule 9(b)
requires plaintiffs to describe the ‘who, what, when, where, and how of the fraud.’ Camasta, 761
F.3d at 736 (quoting AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir. 2011)). Although
the circumstances establishing fraud must be pleaded with particularity, a defendant’s “intent,
knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P.
9(b); see also DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990).
The ICFA prohibits “unfair methods of competition and unfair or deceptive acts or
practices, including but not limited to the use or employment of any deception, fraud, false
pretense, false promise, misrepresentation or the concealment, suppression or omission of any
material fact.” 815 ILL. COMP. STAT. 505; Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392,
399 (7th Cir. 2011). Plaintiff must plead facts alleging: “(1) a deceptive act or unfair practice
occurred, (2) the defendant intended for plaintiff to rely on the deception, (3) the deception
occurred in the course of conduct involving trade or commerce, (4) the plaintiff sustained actual
damages, and (5) such damages were proximately caused by the defendant’s deception.”
Dubey v. Pub. Storage, Inc., 918 N.E.2d 265, 277 (Ill. App. Ct. 2009).
Defendant argues that an alleged violation of the FDCPA does not establish a violation of
the ICFA. By statute, a knowing violation of one of several acts constitutes “an unlawful
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practice within the meaning of” the ICFA. See 815 ILL. COMP. STAT. 505/2Z, 2E. The FDCPA
is not one of the enumerated acts. While a violation of the FDCPA is not a per se violation of
the ICFA, the same practice can violate both Acts. But Plaintiff must sufficiently allege an
independent violation of the ICFA.
Cavalry argues that there was no unfair act or deceptive practice under the ICFA. The
ICFA defines unfair or deceptive acts as “including but not limited to the use or employment of
any deception, fraud, false pretense, false promise, misrepresentation or the concealment,
suppression or omission of any material fact, with intent that others rely upon the concealment,
suppression or omission of such material fact . . . in the conduct of trade or commerce.” 815 ILL.
COMP. STAT. 505/2. Plaintiff argues that filing the collection action in the Richard J. Daley
Center Courthouse “was intended only to deceive [Plaintiff] into believing that the First
Municipal District is the venue where he must defend the case” and that Cavalry actively
concealed the proper venue. (Id. at ¶¶ 42, 46).
Under Illinois law, venue is generally proper: “(1) in the county of residence of any
defendant who is joined in good faith and with probable cause for the purpose of obtaining a
judgment against him or her and not solely for the purpose of fixing venue in that county, or
(2) in the county in which the transaction or some part thereof occurred out of which the cause of
action arose.” 735 ILL. COMP. STAT. 5/2-101. Defendant argues that there is a legitimate
disagreement about the proper venue for filing the collection action and points to two Seventh
Circuit cases discussing the proper venue under the FDCPA: Suesz v. Med-1 Solutions, LLC,
757 F.3d 636 (7th Cir. 2014) and Newsom v. Friedman, 76 F.3d 813 (7th Cir. 1996). As
previously discussed, the question of proper venue under the FDCPA does not directly affect
Plaintiff’s ICFA claim. Regardless, Cavalry did not actively conceal the proper venue. The debt
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collection action was filed in the proper venue, the Plaintiff’s county of residence. It would be
anomalous to hold that Defendant committed fraud by filing their collection action in a venue
specifically authorized by state statute.
Moreover, the case could have easily been transferred to the Rolling Meadows
courthouse. Under the Circuit Court of Cook County General Order No. 1.3(d), “[f]or the
convenience of parties and witnesses and for the more efficient disposition of litigation, a judge,
upon motion of any party may transfer any action pending before that judge to the Presiding
Judge of the division or district for the purpose of transferring the action to any other department,
division or district.” Cook Co. Cir. Ct. G.O. 1.3(d) (Aug. 1, 1996).
Defendant also argues that litigation is not “trade or commerce” under the ICFA.
Plaintiff alleges that Cavalry regularly collects or attempts to collect delinquent consumer
accounts. The Court must accept all well-pleaded factual allegations as true and construe all
reasonable inferences in favor of the plaintiff. Tamayo, 526 F.3d at 1081. A reasonable
inference is that Cavalry sells its collection services and attempts to collect the debt of at least
some people in the State of Illinois, including the Plaintiff. The attempted collection of the
delinquent consumer accounts “constituted the sale and distribution of services which directly or
indirectly affected the people of Illinois, namely the alleged [debtors], and thus amounted to the
conduct of trade or commerce as defined by the Consumer Fraud Act.” People ex rel. Daley v.
Datacom Sys. Corp., 585 N.E.2d 51, 64 (Ill. 1991). Plaintiff has sufficiently pled that the lawsuit
occurred in the course of conduct involving trade or commerce.
Defendant argues that Plaintiff has not pled damages with particularity. “[I]n a private
ICFA action, the element of actual damages ‘requires that the plaintiff suffer actual pecuniary
loss.’” Camasta, 761 F.3d at 739 (quoting Kim v. Carter’s Inc., 598 F.3d 362, 365 (7th Cir.
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2010)). Plaintiff pled that he was required to retain counsel and incurred attorney’s fees and
costs to defend the collection case. (Compl. at ¶ 25.) However, he does not allege that these
costs were incurred because the suit was filed at the Richard J. Daley Center Courthouse.
Plaintiff also does not allege that those same fees would not have been incurred if the suit was
filed at the Rolling Meadows Courthouse. Plaintiff’s allegations of anxiety, mental anguish, and
emotional distress do not, by themselves, constitute damages under the ICFA. Morris v.
Harvey Cycle & Camper, Inc., 911 N.E.2d 1049, 1054 (Ill. App. Ct. 2009) (holding emotional
damages are compensable under the Consumer Fraud Act only when they are part of a total
award that includes actual economic damages). Therefore, Plaintiff has not alleged that his
pecuniary damages were proximately caused by the Defendants’ deception.
Defendant further argues that the filing of a lawsuit is subject to an “absolute privilege”
and cannot be the basis for an ICFA claim. “[T]he absolute litigation privilege affords immunity
to attorneys (and other participants in the judicial process) from tort liability arising out of
statements made in connection with litigation.” Steffes v. Stepan Co., 144 F.3d 1070, 1074 (7th
Cir. 1998). The privilege arises when “the publication ‘was made in a judicial proceeding; had
some connection or logical relation to the action; was made to achieve the objects of the
litigation; and involved litigants or other participants authorized by law.’” Kurczaba v. Pollock,
742 N.E.2d 425, 438 (Ill. App. Ct. 2000) (citing 53 C.J.S. Libel & Slander § 72, at 132 (1987)).
“A private litigant enjoys the same privilege concerning a proceeding to which he is a party.”
Thompson v. Frank, 730 N.E.2d 143, 145 (Ill. App. Ct. 2000) (citing Restatement (Second) of
Torts § 587 (1977)).
Plaintiff does not cite any Illinois authority holding that the immunity is inapplicable to
actions alleging fraud. Rather, Plaintiff responds that the practice of filing the lawsuit is abusive
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and deceptive. However, in Illinois, “[t]he only proper cause of action based on the filing of a
lawsuit is either malicious prosecution or abuse of process.” Rubloff Dev. Grp., Inc. v.
SuperValu, Inc., 863 F. Supp. 2d 732, 746 (N.D. Ill. 2012) (citing Havoco of Am., Ltd. v.
Hollobow, 702 F.2d 643, 647 (7th Cir. 1983)). Neither of which are alleged here. Therefore,
even if Plaintiff had sufficiently alleged pecuniary damages, his ICFA claim would be barred by
Illinois’s absolute litigation privilege. Defendant’s Motion to Dismiss Plaintiff’s ICFA claim is
granted with prejudice.
CONCLUSION
For the reasons set forth above, Cavalry’s Motion to Dismiss [20] Count III is granted
with prejudice.
Date:
April 29, 2015
JOHN W. DARRAH
United States District Court Judge
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