McCoy v. A-1 Diabetes & Medical Supply, Inc.
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
A.I DIABETES & MEDICAL SUPPLY,
No. 17 C
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.
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
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.
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
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
"if they do not, the plaintiff
pleads itself out of court."
E. E. O.
C. v. Concentra Health Services, Inc., 496
.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
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
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.
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.
United States District Court Judge
Dated: November 14,2017
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