Camp Drug Store, Inc. v. Emily Corporation

Filing 34

ORDER, DENYING 16 Motion to Dismiss Count II of Plaintiff's Complaint. Signed by Judge Nancy J. Rosenstengel on 1/5/2018. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CAMP DRUG STORES, INC.,
Plaintiff,
vs.
EMILY CORPORATION d/b/a DDP
MEDICAL SUPPLY,
Defendant.

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Case No. 17-CV-0397-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on a motion to dismiss Count II of Plaintiff Camp
Drug Stores, Inc.’s (“Camp Drug Stores”) complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) filed by Defendant Emily Corporation d/b/a DDP Medical Supply
(“Emily Corporation”) (Doc. 17). On August 21, 2017, Camp Drug Stores filed a response
in opposition to the motion (Doc. 23). On September 5, 2017, Emily Corporation filed a
reply brief (Doc. 31). For the reasons set forth below, the motion is denied.
Legal Standard
In deciding a motion to dismiss for failure to state a claim on which relief can be
granted under Rule 12(b)(6), the district court’s task is to determine whether the
complaint includes “enough facts to state a claim to relief that is plausible on its face.”
Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007)). The Court of Appeals for the Seventh Circuit has clarified
that, even after Twombly, courts must still approach Rule 12(b)(6) motions by construing
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the complaint in the light most favorable to the non-moving party, accepting as true all
well-pleaded facts alleged, and drawing all possible inferences in the non-moving
party’s favor. Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009), cert. denied, --- U.S.
---, 130 S. Ct. 1141 (2010) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008)).
Analysis
Camp Drug Stores has filed a two count complaint against Emily Corporation
alleging violations of the Telephone Consumer Protection Act (“TCPA”), 27 U.S.C. § 227
(Count I) and common law conversion (Count II). Camp Drug Stores alleges in the
complaint that, on March 7, 2017 and April 14, 2017, it received unsolicited fax
advertisements on its fax machine (Doc. 1, p. 1, 3-4). The faxes allegedly described a
promotion for some of Emily Corporation’s products (Id.). Camp Drug Stores alleges
that it suffered damages as a result of the unsolicited fax advertisements, including the
loss of paper, toner ink, wasted time, and interruption of its privacy interests (Id. at
p. 14-15). Camp Drug Stores purports to bring its claims as a class action, alleging that
Emily Corporation faxed (the same or similar) fax advertisements to “more than 39 other
persons in violation of the TCPA.” (Doc. 1, p. 4).
Emily Corporation has moved to dismiss Count II of the complaint, arguing that:
(1) the conversion claim alleged in Count II seeks to recover damages that are
duplicative of the damages Camp Drug Stores also seeks to recover in Count I, and
(2) Camp Drug Stores’s alleged damages under its conversion claim in Count II are de
minimis and therefore not actionable.

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The conversion claim alleged in Count II seeks redress for the same conduct
complained of in Count I, the transmission of two fax advertisements. Emily
Corporation argues that conversion may not be pleaded as a separate count and should
be dismissed from the complaint as duplicative. A “claim” is a set of facts producing one
injury. N.A.A.C.P. v. Am. Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992). A “count,”
on the other hand, “is not a claim per se, but rather the articulation of a legal theory on
which a claim may be premised; there may be more than one legal theory advanced in
support of a single claim, and those alternative theories may (but need not be) set forth
in separate counts.” Mannes v. Ford Motor Co., Inc., No. 13 C 07381, 2014 WL 7332616, at *2
(N.D. Ill. Dec. 22, 2014) (citing FED. R. CIV. P. 8(d)(2)). Rule 8(d)(2) specifically provides
that “[a] party may set out 2 or more statements of a claim . . . alternatively or
hypothetically, either in a single count . . . or in separate ones.” Since Count II is
premised on the same facts as Count I, it is not a distinct “claim,” but an alternative legal
theory under which Camp Drug Stores might claim entitlement to relief. Id. at 291; see
also N.A.A.C.P. v. American Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992)) (“One
set of facts producing one injury creates one claim for relief, no matter how many laws
the deeds violate.”); see also Zidek v. Analgesic Healthcare, Inc., Case No. 13 C 7742, 2014
WL 2566527, at *2 (N.D. Ill. June 6, 2014) (noting that five counts, which all sought
redress for the same conduct, were not distinct “claims,” but “different legal theories,
any of which might entitle [the plaintiffs] to recover damages”). Thus, since there is only
one claim for relief and Camp Drug Stores cannot recover twice for the same injury, it
does not matter if Camp Drug Stores can prevail on one legal theory or both legal

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theories alleged in the complaint. See Zidek, 2014 WL 2566527, at *2. Nor does it matter if
Camp Drug Stores articulates the different legal theories in separate counts of the
complaint, as Camp Drug Stores is entitled to (but not required to) plead alternative
theories of recovery at this early stage of the lawsuit.1 See FED. R. CIV. P. 8(d)(2).
Emily Corporation also argues that Count II should be dismissed for failure to
state a claim because Camp Drug Stores’s damages are de minimis, and de minimis
damages do not state a cognizable claim for conversion. But as the court in Zidek noted,
which this Court finds to be instructive, “[t]he federal rules allow for dismissal ‘for
failure to state a claim’ but do not provide a basis for striking individual legal theories.”
Zidek, 2014 WL 2566527, at *2. “Because a new legal theory is not the same as a new
‘claim’ for federal pleading purposes, [Count II] is not [a new claim] and there is nothing
to dismiss.” Id.
Further, as the parties reference in the briefing, district courts are split as to
whether the de minimis doctrine even bars conversion claims in junk fax cases like this
one. Compare R. Rudnick & Co. v. G.F. Protection, Inc., No. 08 C 1856, 2009 WL 112380 (N.D.
Ill. Jan. 15, 2009); and Green v. Anthony Clark Int’l Ins. Brokers, Ltd., No. 09 C 1541, 2009 WL
2515594 (N.D. Ill. Aug. 17, 2009); with G.M. Sign, Inc. v, Elm Street Chiropractic, Ltd., 871 F.
Supp. 2d 763, 768 (N.D. Ill. 2012); and Old Town Pizza of Lombard v. Corfu-Tasty Gyro’s, Inc.,
1

  Emily Corporation contends that Count II should be dismissed as duplicative based on Rossario’s Fine
Jewelry, Inc. v. Paddock Publications, Inc., 443 F. Supp. 2d 976 (N.D. Ill. 2006) and N.A.A.C.P. v. American
Family Mut. Ins. Co., 978 F.2d 287 (7th Cir. 1992). Rossario’s, however, is not controlling precedent.
Additionally, Rossario’s relies on N.A.A.C.P., which analyzed the meaning of the term “claim” in Rule
54(b), pointing out that “[i]dentifying legal theories may assist defendants and the court in seeing how the
plaintiff hopes to prevail, but this organization does not track the idea of ‘claim for relief’ in the federal
rules.” N.A.A.C.P., 978 F.2d at 292. What the Court garners from N.A.A.C.P. and Rossario’s is that carving
up a single federal claim into different counts by identifying different legal bases on which the plaintiff
hopes to recover is an unnecessary practice, not that such practice warrants dismissal. After all, such a
reading would be inconsistent with the language of Rule 8.

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No. 11-cv-69959, 2012 WL 638765, at *3 (N.D. Ill. Feb. 23, 2012). A ruling on the
applicability of this legal theory “is best saved to the point at which the parties can argue
facts, not allegations.” Zidek, 2014 WL 2566527, at * 3.2 As such, Emily Corporation’s
motion to dismiss Count II is denied.
Conclusion
For the reasons set forth above, the Court DENIES Emily Corporation’s Motion to
Dismiss Count II (Doc. 16).
IT IS SO ORDERED.
DATED: January 5, 2018
s/ Nancy J. Rosenstengel________
NANCY J. ROSENSTENGEL
United States District Judge

2

  For the sake of completeness, the Court will address Emily Corporation’s final argument that Camp
Drug Stores has failed to allege whether sending the facsimiles in this case resulted in the actual
consumption of paper and toner. A review of the complaint reveals that Camp Drug Stores alleges the
following: “Where printed (as in Plaintiff’s case), Defendant also improperly and unlawfully converted
the class members’ paper and toner to Defendant’s own use.” (Doc. 1, p. 16). Thus, the facts alleged imply
that the sending of the facsimiles resulted in the actual consumption of paper and toner.

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