McCoy v. A-1 Diabetes & Medical Supply, Inc.

Filing 25

MEMORANDUM Opinion and Order signed by the Honorable Samuel Der-Yeghiayan on 11/14/2017: This matter is before the court on Defendant A-1 Diabetes & Medical Supply, Inc's (Medical Supply) motion to dismiss and motion to strike. For the reasons stated below, the motion to dismiss is granted in part and denied in part, and the motion to strike is granted. Mailed notice(ags, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ZUCCHINI MCCOY,

)
)
)
)

Plaintiff,

)

v.

A.I DIABETES & MEDICAL SUPPLY,

INC.,

Defendant.

No. 17 C

45ll

)
)
)
)
)

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant A-1 Diabetes & Medical Supply,

Inc.'s (Medical Supply) motion to dismiss and motion to strike. For the reasons
stated below, the motion to dismiss is granted in part and denied in part, and the

motion to strike is granted.

BACKGROUND
Medical Supply allegedly sells diabetic testing supplies to consumers.

Plaintiff Zucchini McCoy (McCoy) claims that in May 2017 she began receiving
repeated solicitation calls from Medical Supply on her cellular phone. McCoy

allegedly told Medical Supply's representative that she was not interested in their
product and told them to remove her number from her call list. McCoy claims that

she continued to receive calls from Medical Supply and that, even after she called

Medical Supply back again for a second time and reiterated her demands, she
continued to receive solicitation phone calls from Medical Supply. McCoy claims

that she has told Medical Supply on numerous occasions to stop calling her, but she
keeps receiving calls. McCoy includes in her complaint a claim alleging a violation

of the Telephone Consumer Protection Act (TCPA), 47 U.S.C.

I), and a claim alleging

a

S

227 et seq. (Count

violation of the Illinois Consumer Fraud and Deceptive

Business Practices Act (IFCA), 815 ILCS 505/1 et seq. (Count

II). Medical Supply

now moves to dismiss all claims and to strike the request for attorneys' fees and
strike an affidavit filed with the complaint.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant Federal Rule of Civil
Procedure 12(bX6) (Rule 12(bX6)), the court must draw all reasonable inferences
that favor the

plaintiff

construe the allegations of the complaint in the light most

favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, lnc.,673 F.3d 609, 622 (7th

Cir.2012); Thompsonv. Ill. Dep't of Prof'l Regulation,300 F.3d 750, 753 (7thCir.
2002). A plaintiff is required to include allegations in the complaint that "plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a

'speculative level"'and

"if they do not, the plaintiff

pleads itself out of court."

E. E. O.

C. v. Concentra Health Services, Inc., 496

F

.3d 773, 77 6 (7th Cir.

2007)(quoting in part Bell Atlantic Corp. v. Twombly,127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter,

lnc.,673 F.3d at 622 (stating that "[t]o

survive a motion to dismiss, the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face," and that "[a]

claim has facial plausibility when the ptaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct

alleged")(quoting Ashcroft v. Iqbal,556 U.S. 662 (2009))(internal quotations
omitted).

DISCUSSION

I.

TCPA Claim
Medical Supply argues that McCoy has not provided sufficient facts in her

complaint to place them on notice of the TCPA claim. Medical Supply contends that

McCoy has not alleged even a general time frame when she received calls. Medical
Supply also argues that McCoy has not indicated when she may have consented to
receive calls and when she revoked that consent. Contrary to Medical Supply's
assertion, McCoy has provided Medical Supply with a general time-frame and the
general nature of the contents of the calls. McCoy alleges that she received calls

starting in May 2Ol7 and continued to receive calls up until the filing of this action
in June 2017. (Compl.

Par.2l). McCoy has also indicated

the cell phone number at

which she was contacted and the numbers used to call her. (Compl. Par. 9, 11).
McCoy is not required to document every call or provide a transcript of the phone
conversations to meet the federal pleading standard for a TCPA claim. McCoy also

provides a general explanation as to her contact with Medical Supply and her
statements to Medical Supply that she did not consent to receiving any further phone

calls from Medical Supply. Medical Supply also questions McCoy's request for
treble damages, but that is an argument relating to damages that delves beyond the
pleadings and not appropriate at this juncture. McCoy has provided sufficient facts

to state a valid TCPA claim. Therefore, the motion to dismiss the TCPA claim is
denied.

II.

Fraud Act Claim

Medical Supply argues that McCoy has failed to plead her ICFA claim with

particularity. McCoy contends that Medical Supply engaged in "deceptive conduct"
and made misrepresentations to her when contacting McCoy and that she has pled
her ICFA claim with particularity. (Resp. 13-15). A plaintiff bringing an ICFA

claim alleging deceptive conduct must plead the claim with particularity in
accordance with Federal Rule of

Civil Procedure 9(b) (Rule 9(b)) and "allege the

who, what, where, and when of the alleged fraud. . . . Camastav. Jos. A. Bank
Clothiers, lnc.,761 F.3d 732,738 (7th Cir.20l4)(explaining that "[w]hile [the

Courtl allowfs] [the plaintiffl some flexibility in the factual support required for his

claim, a plaintiff alleging fraud does not have unlimited leeway in satisffing the

particularity requirement of Rule 9(b) when the circumstances are pleaded solely on
information and belief')(internal quotations omiued).

In the instant action, while McCoy's general allegations as to the time-frame
that she received phone calls from Medical Supply are sufficient for a TCPA claim,
such general allegations are not sufficient to meet the stringent requirements of Rule

9(b). McCoy indicates vaguely that Medical Supply called her "at least 20 times
since she demanded that it stop calling

her." (Compl. Par.23). There

is no date

provided for even one phone call or any clear indication whether McCoy received 20

or 100 phone calls from Medical Supply. Nor is it clear how many calls McCoy
received before she told Medical Supply not to call her again. McCoy alleges in her
o'regularly," but that vague description
complaint that Medical Supply called her

fails to provide adequate detail to meet the requirements of Rule 9(b). (Compl. Par.

l8). McCoy also argues that Medical Supply

used multiple phone numbers to call

McCoy and trick her into answering the phone. However, that explanation of the
deceptive conduct is not included in the complaint. Nor is there an explanation in
the complaint as to how McCoy relied upon such deceptive conduct. McCoy also

fails to provide details concerning the alleged misrepresentations to her or the
approximate date(s) of such alleged misrepresentations. McCoy has thus failed to
plead her ICFA claim with particularity. Based on the above, Medical Supply's

motion to dismiss the ICFA claim is granted.

III. Motion to Strike
Medical Supply moves to strike McCoy's request for attorneys' fees under the

TCPA. McCoy acknowledges that she cannot recover attorneys' fees under the
TCPA. (Resp. 6). Therefore, to the extent that McCoy

seeks such fees under the

TCPA, the motion to strike is granted. Medical Supply also moves to strike

McCoy's affidavit that she attached to her complaint. McCoy has not provided any
legitimate reason for filing such an evidentiary affidavit at the pleadings stage along

with her complaint. Therefore, Medical Supply's motion to strike is granted.

CONCLUSION
Based on the foregoing analysis, Medial Supply's motion to dismiss is granted

in part and denied in part, and Medical Supply's motion to strike is granted.

5#>-z/dz:^Samuel Der-Yeghiayan
United States District Court Judge

Dated: November 14,2017