Bovinett v. HomeAdvisor, Inc. et al

Filing 43

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 3/9/2018. Mailed notice (cc, )

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

RAY ALAN BOVINETT,
Plaintiff,
Case No. 17 C 6229
v.
Judge Harry D. Leinenweber
HOMEADVISOR, INC., ANGI
HOMESERVICES, INC., and
HAWTHORNE DIRECT, LLC,
Defendants.

MEMORANDUM OPINION AND ORDER
Defendants
Homeservices,

HomeAdvisor,
Inc.

Inc.

(“ANGI”),

(“HomeAdvisor”),

and

Hawthorne

ANGI

Direct,

LLC

(“Hawthorne”), bring separate Motions to Dismiss for failure to
state a claim.
of

personal

ANGI and Hawthorne also move to dismiss for lack

jurisdiction.

For

the

reasons

stated

herein,

HomeAdvisor’s Motion is granted in full, and because ANGI’s and
Hawthorne’s

Rule

12(b)(2)

Motions

are

both

granted,

those

parties’ Rule 12(b)(6) arguments are moot.
I.
Bovinett
No. 1.)
him

a

model

and

actor.

(Complaint

¶ 52,

ECF

In September 2014, his Chicago-based agent contacted

about

Bovinett

is

BACKGROUND

participating

appeared

for

in

the

a

photoshoot

shoot

with

for

HomeAdvisor.

HomeAdvisor’s

chosen

photographer on October 8, 2014, and HomeAdvisor has retained

and used the photos from that session ever since.
here is how HomeAdvisor used those photos.

The problem

Bovinett alleges

that before he appeared for the shoot, some unidentified person
from HomeAdvisor assured his agent that the photos would be used
in static form only (i.e., either in print media or as a static
image posted on a website), and would not be incorporated into
any

video.

(Id.

¶¶ 27-30.)

Two

weeks

after

the

shoot,

HomeAdvisor personnel presented Bovinett’s agent with a consent
and

release

form

stating

that

Bovinett

agreed

to

convey

his

rights in the photos to HomeAdvisor for use “in advertising,
promotions, and any other use, and in any media, desired by
HomeAdvisor in its sole discretion, including but not limited to
display on the HomeAdvisor website, in television commercials,
and on the Internet.”

(Id. ¶¶ 31-32; Consent and Release Form,

Ex. C to Compl., ECF No. 1-1.)
HomeAdvisor’s

personnel

notwithstanding

the

consent

According to the Complaint,

assured
and

Bovinett’s

release

agent

language,

HomeAdvisor

would not put the photos to use in any video format.
signed the consent and release on Bovinett’s behalf.
¶¶ 31-32.)

that

The agent
(Compl.

Over roughly the next year, HomeAdvisor worked with

Hawthorne to create TV commercials that incorporated Bovinett’s
photo.

Those commercials began airing in mid-2015 and continue

to

today.

air

(Id.

¶¶ 34-35.)
- 2 -

In

spring

2017,

a

newly

incorporated

entity

called

ANGI

was

formed

to

consummate

a

merger between HomeAdvisor and non-party entity Angie’s List.
(Id. ¶ 12.)

HomeAdvisor announced soon thereafter that ANGI

would be the successor to HomeAdvisor’s business.

(Id. ¶ 58.)

In August, 2017, Bovinett brought this suit against HomeAdvisor,
ANGI, and Hawthorne, alleging fourteen causes of action ranging
from Lanham Act violations to various forms of fraud.

(See,

generally, Compl.)
II.

DISCUSSION

Each Defendant now brings its own Motion to Dismiss some or
all

of

the

counts

against

it.

The

Court

first

addresses

Hawthorne’s and ANGI’s Motions to Dismiss for lack of personal
jurisdiction before turning to HomeAdvisor’s Motion to Dismiss
for failure to state a claim.
A.
The
evidence

Hawthorne’s and ANGI’s 12(b)(2) Motions

plaintiff
to

jurisdiction.

bears

establish

a

burden

prima

of

facie

providing
case

for

sufficient
personal

RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272,

1276 (7th Cir. 1997).
“specific.”

the

Personal jurisdiction may be “general” or

General jurisdiction lies only where the defendant

has “continuous and systematic” contacts with the forum state.
See, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 415-16 (1984).

In all but the most exceptional cases,
- 3 -

general jurisdiction over a corporation is limited to its place
of incorporation and/or principal place of business.

Leibovitch

v. Islamic Republic of Iran, 188 F. Supp. 3d 734, 746 (N.D. Ill.
2016) (citing Daimler AG v. Bauman, 134 S.Ct. 746, 761 n.19
(2014)),

aff’d,

852

F.3d

687

(7th

Cir.

2017).

Defendants

subject to general jurisdiction may be haled into court “for any
alleged wrong . . . no matter how unrelated to the defendant’s
contacts with the forum.”

uBID, Inc. v. GoDaddy Grp., Inc., 623

F.3d 421, 426 (7th Cir. 2010) (citation omitted).
In

contrast,

“[s]pecific

personal

jurisdiction

is

appropriate where (1) the defendant has purposefully directed
his

activities

at

the

forum

state

or

purposefully

availed

himself of the privilege of conducting business in that state,
and (2) the alleged injury arises out of the defendant’s forumrelated activities.”

Tamburo v. Dworkin, 601 F.3d 693, 702 (7th

Cir. 2010) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472

(1985)).

demonstrate

that

In

either

the

case,

exercise

of

the

plaintiff

jurisdiction

must

also

comports

with

traditional notions of fair play and substantial justice.

Int’l

Shoe Co. v. State of Washington, 326 U.S. 310, 320 (1945).
1.
No

general

Hawthorne’s 12(b)(2) Motion

jurisdiction

exists

over

Hawthorne

here.

Bovinett alleges that Hawthorne is an Iowa limited liability
- 4 -

company with its principal place of business in Fairfield, Iowa.
(Compl. ¶ 13.)

Hawthorn responds that its principal place of

business is actually Los Angeles, California, but this does not
matter.

In either case, Hawthorne is neither headquartered nor

incorporated in this state, so this Court may not exert general
jurisdiction over it.
As

for

Bauman, 134 S.Ct. at 761 n.19.

specific

jurisdiction,

Bovinett

advances

three

theories for Hawthorne’s sufficient contacts with this forum,
namely:

(1)

Hawthorne’s

purported

business

activities

in

Illinois; (2) alleged tortious acts undertaken by Hawthorne and
targeted at Bovinett in Illinois; and (3) a conspiracy/agency
theory.
In his Complaint, Bovinett recites a catalogue of business
activities that he attributes to the three Defendants.
Compl. ¶ 15.)

(See,

He does not identify specifically which of these

activities Hawthorne allegedly undertook, however, and he never
connects any of the activities to the events allegedly giving
rise to his injury.

See, Tamburo, 601 F.3d at 702 (observing

that specific jurisdiction may not lie unless the alleged injury
arises

out

of

the

Bovinett’s

failure

allegations

dooms

defendant’s
to

his

connect
first

forum-related
these

theory

over Hawthorne.
- 5 -

for

dots

activities).

with

specific

plausible

jurisdiction

Next,
specific

that

because

Hawthorne

it

is

susceptible

committed

torts

targeted

to
at

The key question under this tort theory is whether

defendant

forum state.
2012).

argues

jurisdiction

Illinois.
the

Bovinett

“purposefully

directed”

its

activities

at

the

Felland v. Clifton, 682 F.3d 665, 673 (7th Cir.

In other words, Hawthorne is not subject to specific

jurisdiction

under

this

theory

unless

it

engaged

in

(1)

intentional conduct (2) expressly aimed at Illinois (3) with
knowledge that Bovinett would be injured in Illinois.
at

674-75.

First,

Bovinett

did

not

clearly

See, id.

allege

what

activities (tortious or otherwise) Hawthorne undertook that were
“expressly aimed” at Illinois.
to

this

second

theory

is

But even if he had, still fatal

Bovinett’s

failure

to

allege

facts

showing that Hawthorne knew Bovinett was in Illinois or that he
would be injured here.

His Complaint uses the right jargon,

alleging that Defendants collectively “aimed and targeted their
tortious acts and conduct at Bovinett in Illinois, knowing that
they would cause harm to Bovinett within the state of Illinois
where Bovinett resides and conducts business.”

(Compl. ¶ 16.)

But without alleging any facts to lend some credence to these
allegations, Bovinett falls short of carrying his burden.

See,

N. Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (7th Cir.
2014).
- 6 -

Finally,

Bovinett

argues

conspiracy/agency theory.

for

specific

jurisdiction

on

a

The conspiracy hook will not work

here, as the Seventh Circuit has disclaimed it under Illinois
law.
582,

See, Smith v. Jefferson Cty. Bd. of Educ., 378 F. App’x
585-86

(7th

Cir.

2010).

True,

the

Illinois

long-arm

statute recognizes the agency theory, see, Hang Glide USA, LLC
v. Coastal Aviation Maint., LLC, No. 16 C 6905, 2017 WL 1430617,
at *4 (N.D. Ill. Apr. 18, 2017) (citing 735 ILCS 5/2-209(a)),
but Bovinett has not alleged enough to avail himself of it.

His

Complaint fails to allege plausibly either that Hawthorne acted
through any agent or that Hawthorne acted on behalf of the other
Defendants.

All Bovinett claims Hawthorn did was create the

allegedly

tortious

Hawthorne

conducted

¶ 35.)

commercials,
any

of

and

this

he

work

does
in

not

allege

Illinois.

that

(Compl.

Because Hawthorne is not alleged to have played any role

in the photoshoot or subsequent creation or presentation of the
consent

and

release

jurisdictionally

agreement,

relevant

Hawthorne’s

connection

to

only

Bovinett

plausible,

would

be

if

Hawthorne created the allegedly tortious commercials with “an
intent to affect an Illinois interest.”

Edelson v. Ch’ien, 352

F. Supp. 2d 861, 867 (N.D. Ill. 2005) (citing Heritage House
Rests., Inc. v. Continental Funding Grp., Inc., 906 F.2d 276,
282 (7th Cir. 1990)).

But, again, nowhere in the Complaint does
- 7 -

Bovinett plausibly allege that Hawthorne had reason to know that
he was an Illinois resident.
Bovinett
establish

a

Hawthorne.

Bovinett’s third theory fails.

has

failed

to

prima

facie

case

See,

RAR,

provide

Inc.,

for
107

sufficient

personal
F.3d

at

evidence

jurisdiction
1276.

The

to
over

Court

accordingly grants Hawthorne’s 12(b)(2) Motion and dismisses all
claims against Hawthorne without prejudice.
2.

ANGI’s 12(b)(2) Motion

ANGI argues repeatedly amid the flurry of filings at bar
that because it was not incorporated until 2017—well after the
events giving rise to Bovinett’s claims—it cannot have had any
jurisdictionally relevant contact with Illinois and so cannot be
subject to personal jurisdiction here.
ANGI is mistaken.
corporate

In principle, at least,

Its argument ignores the rule that “[i]n the

successor

context,

the

successor

corporation

has

chosen to stand in the shoes of its predecessor and has chosen
to

accept

the

business

expectations

previously with that predecessor.

of

those

who

have

dealt

Therefore, it can be expected

to be haled into the same courts as its predecessor.”

Purdue

Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 784
(7th Cir. 2003).

This rule only applies, however, if forum law

would

successor

hold

predecessor.

the

liable

for

the

Id. at 783-84 (citation omitted).
- 8 -

actions

of

its

In Illinois, it is a well settled rule that “a corporation
that purchases the assets of another corporation is not liable
for the debts or liabilities of the transferor corporation.”
Vernon v. Schuster, 688 N.E.2d 1172, 1175 (Ill. 1997) (citations
omitted).

There are four exceptions to this rule:

(1) where there is an express or implied agreement of
assumption; (2) where the transaction amounts to a
consolidation or merger of the purchaser or seller
corporation; (3) where the purchaser is merely a
continuation
of
the
seller;
or
(4)
where
the
transaction is for the fraudulent purpose of escaping
liability for the seller's obligations.
Mamacita, Inc. v. Colborne Acquisition Co., LLC., No. 10 C 6861,
2011 WL 881654, at *3 (N.D. Ill. Mar. 11, 2011) (citing Vernon,
688 N.E.3d at 1175-76).

Given the state of Bovinett’s Complaint

at present, however, none of these exceptions applies to render
ANGI liable for HomeAdvisor’s actions.
any

express

allegations

agreement
he

does

implied agreement.

between

include

Bovinett has not alleged

these

fall

Defendants,

short

of

and

establishing

the
an

In all, Bovinett alleges that “ANGI . . .

has succeeded to, or is in the process of succeeding to, the
business of HomeAdvisor, through a merger.” (Compl. ¶ 11).
language

is

similar

to

the

allegation

in

Vernon,

where

This
the

plaintiff claimed that because the defendant has succeed[ed] to
the assets, rights, and obligations” of his father’s business,
that defendant should be liable under warranties that business
- 9 -

had issued.

The dissent agreed, believing that the plaintiff

sufficiently

alleged

agreement

successor

exception,

interpretation.

but

liability

the

Mamacita,

under

the

implied

majority

rejected

2011

881654,

Inc.,

(discussing Vernon, 688 N.E.2d at 1174).

WL

that
at

*3

If the allegations in

Vernon did not suffice, Bovinett’s nearly identical allegations
cannot either.
The second successor liability exception is the so-called
de facto merger exception.

“In determining whether a de facto

merger has occurred, the most important factor to consider is
the identity of ownership of the new and former corporation.”
Steel Co. v. Morgan Marshall Indus., Inc., 662 N.E.2d 595, 600
(Ill. App. Ct. 1996).

Bovinett has not alleged anything here

regarding the ownership of either HomeAdvisor or ANGI, so the
Court

cannot

say

he

has

carried

his

burden

as

to

exception

number two.
This shortcoming dooms Bovinett’s chances under the third,
“mere continuation,” exception as well.
emphasized

that

the

key

element

to

Illinois courts have

this

exception

is

“the

identity of officers, directors, and stock between the selling
and purchasing corporations.”
N.E.2d

1268,

1277

(Ill.

Diguilio v. Goss Int’l Corp., 906

App.

Ct.

N.E.2d at 1172) (citations omitted).
- 10 -

2009)

(citing

Vernon,

688

Finally, Bovinett does not allege, as is required under the
fourth

exception,

fraudulent.

that

Illinois

the

courts

ANGI/HomeAdvisor
typically

merger

consider

the

was

Uniform

Fraudulent Trade Act’s “badges of fraud” in determining whether
a plaintiff has stated a claim under this exception.

Mamacita,

Inc., 2011 WL 881654, at *5 (citing 740 ILCS 106/5(b)(1)-(11)).
Bovinett has not alleged the presence of any of these badges,
which include indicia such as “the transfer was disclosed or
concealed” and “the transfer occurred shortly before or shortly
after a substantial debt was incurred.”
It

might

successor

well

and

be

thus

that

ANGI

plausibly

personal jurisdiction.

is

Id.
HomeAdvisor’s

susceptible

to

corporate

this

Court’s

But Bovinett has failed to carry his

burden of providing sufficient evidence to establish a prima
facie case of successor liability, so ANGI’s 12(b)(2) Motion
must be granted.
B.
To

survive

a

HomeAdvisor’s 12(b)(6) Motion
motion

to

dismiss

under

Rule

12(b)(6),

a

complaint must “state a claim to relief that is plausible on its
face.”
“A

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

claim

has

facial

plausibility

when

the

plaintiff

pleads

factual content that allows the court to draw the reasonable
inference

that

the

defendant

is

- 11 -

liable

for

the

misconduct

alleged.”

Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009).

“Factual allegations are accepted as true at the pleading stage,
but

allegations

in

the

form

of

legal

conclusions

insufficient to survive a Rule 12(b)(6) motion.”

are

Adams v. City

of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (citation
omitted) (internal quotation marks omitted).

Because the Court

has

12(b)(2)

already

granted

Hawthorne’s

and

ANGI’s

Motions,

their 12(b)(6) Motions are moot and warrant no consideration
here.

The Court thus turns to HomeAdvisor’s 12(b)(6) Motion and

considers each count in turn.
1.
In

Count I – Fraudulent Inducement

Count

I,

misrepresentations:

Bovinett
First,

objects

the

to

pre-shoot

two

alleged

representation

by

“HomeAdvisor and/or Hawthorne” to his agent that the shoot did
not

contemplate

any

videographic

use

of

the

photos

(Compl.

¶ 64), and second, the post-shoot representation by HomeAdvisor
that,

contrary

to

the

express

language

of

the

consent

and

release form, the photographs would not be used in any video
format.
The

Court

agrees

with

HomeAdvisor’s

contention

that

Bovinett’s “fraudulent inducement” claim is really a claim for
promissory

fraud.

HomeAdvisor

promised

Bovinett’s
they

would

beef
never

- 12 -

boils

down

incorporate

to

this:

his

photos

into any video; later, they did.

Claims like this one that

involve a false statement of intent regarding future conduct are
generally not actionable under Illinois law.

Ass’n Ben. Servs.,

Inc. v. Caremark RX, Inc., 493 F.3d 841, 853 (7th Cir. 2007)
(characterizing
survive

the

promissory

pleading

fraud).

stage

if

However,

the

such

plaintiff

claims

shows

they

“particularly egregious” or are part of a larger scheme.

can
are
See,

Int’l Star Registry of Ill. v. ABC Radio Network, Inc., 451 F.
Supp. 2d 982, 988 (N.D. Ill. 2006) (citing Desnick v. Am. Broad.
Cos.,

44

F.3d

1345,

1354

(7th

Cir.

1995)).

None

of

the

allegations shows that the complained-of misrepresentations are
particularly egregious.

See, e.g.,

Int’l Star Registry, 451 F.

Supp. 2d at 988 (finding alleged misrepresentation regarding how
frequently defendant intended to run plaintiff’s advertisements
did not qualify as particularly egregious).

The question thus

becomes whether Bovinett has alleged these statements were part
of a larger scheme, i.e., a “pattern of fraudulent statements.”
Martinez-Cruz

v.

N.

Cent.

Coll.,

No. 13-CV-4328,

2013

WL

6498761, at *4 (N.D. Ill. Dec. 11, 2013) (quoting BPI Energy
Holdings, Inc. v. IEC (Montgomery), LLC, 664 F.3d 131, 136 (7th
Cir. 2011)).
Bovinett has alleged no such thing.

True, he alleges two

different statements to the same effect (i.e., the non-video use
- 13 -

of

the

photos),

and

at

first

blush

these

statements

could

together form the “pattern” Bovinett needs to allege to sustain
his claim.

But see, LeDonne v. Axa Equitable Life Ins. Co., 411

F. Supp. 2d 957, 962 (N.D. Ill. 2006) (stating that an oral
promise

issued

fraudulent

on

two

intent

occasions

where

is

plaintiff

not

fails

sufficient
to

claim

to

plead

defendants

engaged in other acts of trickery or perpetrated this type of
fraud as a regular practice or on any grand scale), superseded
by statute on other grounds, 735 ILCS 5/2-2201, as recognized in
Vertex Ref., NV, LLC v. Nat’l Union Fire Ins., Co., No. 16 CV
3498, 2017 WL 977000, at *6 (N.D. Ill. Mar. 14, 2017).

But his

“pattern” is cut in two by his deficient allegations as to the
first

statement.

Rule

9(b)

of

the

Federal

Rule

of

Civil

Procedure requires that allegations of fraud must be stated with
specificity.
plaintiff

to

FED. R. CIV. P. 9(b).
state

misrepresentation,

the
the

identity
time,

of

“The
the

place,

Rule

person
and

requires
who

content

the

made

the

of

the

misrepresentation, and the method by which the misrepresentation
was communicated to the plaintiff.”

Borich v. BP, P.L.C., 904

F. Supp. 2d 855, 862 (N.D. Ill. 2012) (citing Vicom, Inc. v.
Harbridge
1994)).

Merch.

Servs.,

Inc.,

20

F.3d

771,

777

(7th

Cir.

“It also forces the plaintiff to conduct a careful

pretrial investigation and thus operates as a screen against
- 14 -

spurious

fraud

claims.”

Fidelity

Nat’l

Title

Ins.

Co.

v.

Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 748-49 (7th Cir.
2005).

Here,

Bovinett

fails

to

allege,

as

required

under

Rule 9, the time and place of the first alleged misstatement, as
well

as

the

method

by

which

it

was

communicated.

Indeed,

Bovinett declined even to settle on whom, exactly, made this
first

statement

“and/or”

(whether

Hawthorne).

A

a

representative

“careful

pretrial

of

HomeAdvisor

investigation”

as

required by Rule 9(b) would have clarified his allegations, and
without that clarification this claim cannot survive.

Fidelity,

412 F.3d at 748-49.
The

Court

adds

that

Bovinett’s

first

count

is

somewhat

amorphous, and might be premised upon fraudulent concealment as
well.

(See, Compl. ¶ 65 (“Defendant(s) fraudulently concealed

the fact they were intending to mislead Bovinett (and his agent)
by tricking him . . . .”).)

Regardless, this claim still fails.

A plaintiff pleading fraudulent concealment must allege that the
defendant concealed a material fact when he was under a duty to
disclose that fact to plaintiff.

Cohen v. Am. Sec. Ins. Co.,

735 F.3d 601, 613 (7th Cir. 2013) (citations omitted) (applying
Illinois

law).

Such

a

duty

may

arise

from

a

fiduciary

or

confidential relationship or from another situation that places
the defendant “in a position of influence and superiority” over
- 15 -

the plaintiff.

Id. (citations omitted).

that

did

Bovinett

not

allege

relationship at play here.

HomeAdvisor is correct

facts

suggesting

any

special

HomeAdvisor’s Motion to Dismiss is

granted as to Count I.
2.
A

plaintiff

Count II – Constructive Fraud
alleging

constructive

fraud

must

allege

existence of a confidential or fiduciary relationship.

the
See,

Joyce v. Morgan Stanley & Co., 538 F.3d 797, 800 (7th Cir.
2008).

But as already discussed as to Count I, Bovinett has

failed to allege facts suggesting such a relationship existed
here between him and HomeAdvisor.
3.

Count II is dismissed.

Counts III-VI – Consumer Confusion Claims

In Counts III-VI, Bovinett brings claims under the Lanham
Act, 15 U.S.C. § 1125(a)(1)(A)-(B), the Illinois Consumer Fraud
and Deceptive Business Practices Act, 815 ILCS 505/2 et seq.,
the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS
510/1 et

seq.,

and

for

unfair

competition

under

common

law.

Although most of these counts can be knocked out in one fell
swoop, we must first pause a moment on Count III.
asserts

two

endorsement

discrete
and

false

§ 1125(a)(1)(A)-(B).
demands

some

brief

claims

under

advertising

the

Lanham

Act

respectively.

That count
for
15

false
U.S.C.

It is the false advertising claim that
attention

here.

- 16 -

A

plaintiff

bringing

a

Lanham

Act

false

advertising

a

false

statement

things,

commercial

advertisement

claim

of

must

fact

about

its

by

own

allege,
the

or

among

defendant

another’s

other
in

a

product.

See Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 819 (7th
Cir.

1999).

Here,

Bovinett

never

alleges

any

such

false

statement, so his false advertising claim cannot pass muster.
That detour handled, we move on to the balance of Count III as
well as Counts IV-VI.
All of these claims fail for the same reason.

Each turns

upon allegations that the Defendants’ use of Bovinett’s image
creates

a

likelihood

of

public

confusion

as

to

Bovinett’s

affiliation, sponsorship, or approval of Defendants and/or their
activities and services.

See, e.g., Hart v. Amazon.com, Inc.,

191 F. Supp. 3d 809, 819 (N.D. Ill. 2016) (stating likelihood of
confusion

is

a

key

element

in

Lanham

Act

false

endorsement

claims), aff’d, 845 F.3d 802 (7th Cir. 2017); Thacker v. Menard,
Inc., 105 F.3d 382, 386 (7th Cir. 1997) (stating same for claims
under

the

Practices

Illinois
Act);

Consumer

Microsoft

Fraud

Corp.

v.

and

Deceptive

Logical

Choice

Business
Computers,

Inc., No. 99 C 1300, 2001 WL 58950, at *9 (N.D. Ill. Jan. 22,
2001) (stating same for Illinois common law unfair competition
claims and claims under the Illinois Uniform Deceptive Trade
Practices Act).

Yet Bovinett admits he agreed to pose as a
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model

for

HomeAdvisor’s

photoshoot

with

the

knowledge

that

HomeAdvisor intended to use those photos in advertising.

His

qualm is thus not over whether he agreed to be affiliated with
or signal his public approval for HomeAdvisor—he did both—he
simply

objects

affiliation
tortious

that

into

a

HomeAdvisor
video

commercials

impression

that

format.

might

Bovinett

unlawfully

well

endorses

Put

incorporated

simply,

leave

the

viewers

HomeAdvisor.

that

allegedly
with
But

the
that

impression is accurate, at least as of the time Bovinett sold
his rights in these photos, so the impression cannot confuse
anyone.

Bovinett fails to allege facts showing a likelihood of

consumer confusion, dooming Counts III-VI.

Each is dismissed

with prejudice.
5.

Count XIII – Injunction

Bovinett may seek an injunction where he believes he is
entitled to one, but “an injunction is a remedy, not a claim or
cause of action.”

Murfin v. St. Mary’s Good Samaritan, Inc.,

No. 12-CV-1077-WDS, 2012 WL 6611023, at *4 (S.D. Ill. Dec. 19,
2012).

Count XIII is dismissed with prejudice for failure to

state a claim upon which relief may be granted.
6.

Count XIV – For Liability Against John Doe Defendants

For two different reasons, the Court dismisses this count
as well.

The Court agrees with the decision from its sister
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district that plaintiffs should not include Doe defendants in
their complaints without giving the court some indication of who
these unnamed defendants are and what they are alleged to have
done.

See, Dedalis v. Brown Cty. Jail, No. 15-CV-1543, 2016 WL

792425,

at

*2

(E.D.

Wis.

Feb.

26,

2016).

“While

it

is

permissible for [a] plaintiff to proceed without knowing the
proper

name

defendant
court]

of

with

can

a

Doe

defendant,

particular

determine

actions

whether

against that unnamed person.”
here.

He

simply

he

asserts

or

[the]
Id.

that

must

connect

inactions

plaintiff

so

each
that

states

a

Doe
[the

claim

Bovinett does no such thing
“one

or

more

individual[s],

firm(s), affiliate(s), or contractor(s)” acted in concert with
one or multiple Defendants to perpetrate some or all of the
complained-of torts.

This ultra-broad and hypothetical claim

has no legs to stand on as Bovinett has not given the Court
enough to judge its merits.
Secondly, because the Court has now dismissed Bovinett’s
Lanham

Act

claims

in

Count

question jurisdiction here.

III,

there

is

no

longer

federal

The Court now sits in diversity

jurisdiction, and in such circumstances John Doe defendants are
not permitted because their anonymity makes it impossible to be
sure

of

the

parties’

diversity.

See,

Howell

by

Tribune Entm’t Co., 106 F.3d 215, 218 (7th Cir. 1997).
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Goerdt

v.

Count XIV is dismissed with prejudice unless Bovinett first
reestablishes

federal

question

jurisdiction

by

amending

his

Complaint.
III.

CONCLUSION

For the reasons stated herein, Hawthorne’s Rule 12(b)(2)
Motion [ECF No. 21] and ANGI’s Rule 12(b)(2) Motion [ECF No. 19]
are granted.
[ECF

Nos.

With respect to HomeAdvisor’s Rule 12(b)(6) Motion

17],

the

Court

dismisses

Counts

I

and

II

without

prejudice and dismisses Counts III-VI and XIII with prejudice.
The

Court

also

Bovinett

first

amending

his

Count XIV.

dismisses

Count

reestablishes
Complaint,

in

XIV

federal
which

with

prejudice

question

case

unless

jurisdiction

Bovinett

may

by

replead

ANGI’s and Hawthorne’s Rule 12(b)(6) arguments are

denied as moot.

Bovinett shall file an Amended Complaint by

March

or

30,

2018,

else

the

counts

now

dismissed

without

prejudice will be dismissed with prejudice and Bovinett will
stand on his current Complaint.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: 3/9/2018
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