Camp Drug Store, Inc. v. Red Parrot Distribution, Inc.

Filing 29

ORDER denying 14 Motion to Dismiss for Failure to State a Claim. Signed by Judge David R. Herndon on 1/23/2018. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CAMP DRUG STORE, INC.,
Plaintiff,
Case No. 17-CV-502-DRH-RJD

vs.
RED PARROT DISTRIBUTION, INC.,
Defendant.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Now before the Court is defendant Red Parrot Distribution, Inc.’s motion to
dismiss plaintiff’s class action complaint pursuant to FEDERAL RULE

OF

CIVIL

PROCEDURE 12(b)(6) (Doc. 14). Plaintiff Camp Drug Store, Inc., (hereinafter “Camp
Drug”) opposes the motion (Doc. 26). For the reasons explained below, the Court
DENIES defendant’s motion to dismiss (Doc. 14).
I.

Background 1

Plaintiff Camp Drug brings this putative class action against Defendant Red
Parrot Distribution, Inc. (hereinafter “Red Parrot”), alleging that Red Parrot sent
plaintiff at least two unsolicited advertisements by facsimile in violation of the
Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) (Doc. 1, ¶ 2). Camp
Drug also alleges a conversion claim. (Id. at ¶ 58-63).
1

The Court takes the facts in the background section from the class action complaint and treats
them as true for the purpose of resolving Red Parrot Distribution, Inc.’s motion to dismiss. See
Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).

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In bringing this action on behalf of a class, the two-count complaint alleges
that Red Parrot violated the TCPA by sending “advertisements by facsimile to
Plaintiff and more than thirty-nine (39) other persons.” (Id. at ¶ 22). Camp Drug
also asserts that by sending unsolicited and unauthorized advertisements to its
fax machine and that of others, Red Parrot unlawfully converted the fax machine
to its own use. Furthermore, Camp Drug notes that “when printed (as in Plaintiff’s
case), Defendant also improperly and unlawfully converted the class members’
paper and toner to Defendant’s own use.” (Id. at ¶ 58). Under the TCPA, Camp
Drug seeks statutory damages, to be trebled if the facts show that Red Parrot
acted willfully or knowingly, along with injunctive relief. For its conversion count,
Camp Drug asks for an award of “appropriate damages” along with punitive
damages, attorneys' fees, and costs.
On July 31, 2017, Red Parrot filed the pending motion to dismiss (Doc.
14), to which Camp Drug opposes on grounds that its allegations support the
reasonable inference that Red Parrot did, in fact, send the faxes or cause them to
be sent, that Red Parrot’s class certification challenge is premature, and that
Camp Drug’s conversion claim is supported by case law. (Doc. 26).
II.

Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
challenges the sufficiency of the complaint for failure to state a claim upon which
relief may be granted. Gen. Hallinan v. Fraternal Order of Police Chicago Lodge

No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court explained in Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that to withstand Rule
12(b)(6) dismissal, a complaint “does not need detailed factual allegations,” but
must contain “enough facts to state a claim for relief that is plausible on its face.”
550 U.S. at 570.

Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), retooled federal
pleading standards, but notice pleading remains all that is required in a
complaint. “A plaintiff still must provide only ‘enough detail to give the defendant
fair notice of what the claim is and the grounds upon which it rests and, through
his allegations, show that it is plausible, rather than merely speculative, that he is
entitled to relief.’” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008)
(citation omitted). In ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), 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, Inc., 673 F.3d 609, 622 (7th Cir. 2012);
See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009). Additionally, when
evaluating a Rule 12(b)(6) motion, a court can consider matters outside the
pleadings if they are referred to in a plaintiff's complaint and are central to the
plaintiff's claim. See 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th
Cir.2002). The Court now turns to address the merits of the motion.
a. Count 1: TCPA

III.

Analysis

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As mentioned above, Camp Drug’s complaint alleges that Red Parrot
violated the TCPA by sending two unsolicited advertisements to Camp Drug by
facsimile. In its motion to dismiss, Red Parrot contends that Camp Drug fails to
establish that the alleged faxes in question were sent by, or on behalf of, Red
Parrot (Doc. 14).
The TCPA clearly states that it is unlawful for any person “to use any
telephone facsimile machine, computer, or other device to send, to a telephone
facsimile machine, an unsolicited advertisement....” 47 U.S.C. § 227(b)(1)(C). The
TCPA defines unsolicited advertisement as “any material advertising the
commercial availability or quality of any property, goods, or services which is
transmitted to any person without that person's prior express invitation or
permission, in writing or otherwise.”47 U.S.C. § 227(a)(5). The TCPA provides
that the sender of these unsolicited fax advertisements shall be subjected to a
statutory penalty of $500 per violation. 47 U.S.C. § 227(b)(1)(C). There are two
ways in which a person or entity may qualify as a "sender" under the TCPA. First,
the fax sender may be defined as "the person or entity on whose behalf a facsimile
unsolicited advertisement is sent..." 47 C.F.R. § 64.1200(f)(10). Second, the fax
sender may be defined as the person or entity “whose goods or services are
advertised or promoted in the unsolicited advertisement.” Id.
Camp Drug’s complaint alleges that “Red Parrot is liable for the fax
advertisements at issue because it sent the faxes, caused the faxes to be sent,
requested and paid for the faxes to be sent, participated in the activity giving rise

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to or constituting the violation, provided materials from which to create the
advertisements, designed or approved the faxes to be sent, or the faxes were sent
on its behalf.” (Doc. 1 at ¶ 54). Red Parrot cites to Cin-Q Automobiles, Inc. v.

Buccaneers Limited Partnership, Case No. 8:13-cv-01592-AEP, 2014 WL 7224943
(M.D. Fla. Dec. 17, 2014) (Porcelli, J.), to support its argument that Camp Drug
failed to establish that Red Parrot was the ‘sender’ of the alleged faxes at issue.
Red Parrot argues that Cin-Q Automobiles, Inc., stands for the premise that
merely being the party whose product or service is advertised or promoted will
not necessarily result in that party being declared a ‘sender.’ However, as noted by
Camp Drug, Cin-Q Automobiles, Inc. addresses cross motions for summary
judgment where the parties were afforded an opportunity to conduct discovery as
to whether the defendant qualified as a ‘sender’ under the TCPA. The Court in

Cin-Q Automobiles, Inc., did not dismiss the case at the pleading stage without
any benefit of discovery. In this case, the parties have yet to engage in discovery.
Thus, when considering a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court looks solely to the pleadings and those documents
referred to in Camp Drug's complaint that are central to its claims in order to
determine if the complaint survives. See 188 LLC, 300 F.3d at 735.
Looking to the characteristics of the subject faxes, taken together with
Camp Drug’s allegations in the complaint, the pleadings sufficiently support the
reasonable inference that Red Parrot did, in fact, send the faxes or cause them to
be sent. The faxes, on their face, state that they are "from" Red Parrot Distribution

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(Docs 1-1 & 1-2). They also list Red Parrot’s web address, telephone number, and
fax number, all of which suggest ways to order the products presented in the fax
advertisements. Therefore, the Court finds that the pleadings and faxes
sufficiently support the reasonable inference that Red Parrot sent, or caused to be
sent, the faxes at issue.
Because Camp Drug has plausibly alleged that Red Parrot was a ‘sender’ of
the faxes at issue, the motion to dismiss is denied as to Count 1.
b. Count 2: Conversion
Red Parrot also contends that the de minimis nature of Camp Drug’s
conversion claim warrants dismissal of Count II because the actual damages set
forth in the complaint “(toner, paper, and employee time for allegedly receiving
two (2) faxes) are minuscule to the point of nonexistent.” (Doc. 14, pg. 9).
For its conversion claim, Camp Drug seeks redress for the same conduct
complained of in Count I, the transmission of two fax advertisements. Specifically,
Camp Drug alleges that Red Parrot “improperly and unlawfully converted the
class’s fax machines to Defendant’s own use. Where printed (as in Plaintiff’s case),
Defendant also improperly and unlawfully converted the class members’ paper
and toner to Defendant’s own use. Defendant also converted Plaintiff’s time to
Defendant’s own use, as it did with the valuable time of the other class member.”
(Doc. 1 at ¶ 58.) Camp Drug and the proposed class members allegedly “owned an
unqualified and immediate right to possession of their fax machines, paper, toner,
and employee time” prior to Red Parrot’s transmission of the unsolicited fax.
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(Id. ¶ 59.) Camp Drug alleges that by sending the faxes, Red Parrot “permanently
misappropriated the class members’ fax machines, toner, paper, and employee
time to their own use.” (Id. ¶ 60).
The Court is aware that other district courts in this circuit are split as to
whether the de minimis doctrine bars conversion claims in junk fax cases, like
this one. Compare Camp Drug Stores, Inc. v. Emily Corp., No. 17-CV-0397-NJRDGW, 2018 WL 306841, at *1 (S.D. Ill. Jan. 5, 2018) (Rosenstengel, J.); and

Green v. Anthony Clark Int'l Ins. Brokers, Ltd., No. 09 C 1541, 2009 WL
2515594, at *3 (N.D. Ill. Aug. 17, 2009) (Kennelly, J.); with Able Home Health,

LLC v. Onsite Healthcare, Inc., S.C., 2017 WL 2152429, at *6 (N.D. Ill. May 17,
2017) (Dow, Jr., J.); and Sturdy v. Medtrak Educ. Servs. LLC, 2014 WL
2727200, at *5 (C.D. Ill. June 16, 2014) (Bruce, J.);.
The district courts in Zidek v. Analgesic Healthcare, Inc., and Camp Drug

Stores, Inc. v. Emily Corp., noted that “[t]he federal rules allow for dismissal ‘for
failure to state a claim’ but do not provide a basis for striking individual legal
theories.’’ Camp Drug Stores, Inc. v. Emily Corp., 2018 WL 306841, at *2, citing

Zidek v. Analgesic Healthcare, Inc., No. 13 C 7742, 2014 WL 2566527, at *2 (N.D.
Ill. June 6, 2014) (Leinenweber, J.). The courts went on to hold that 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. “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.

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The Court finds Camp Drug Stores, Inc. v. Emily Corp and Zidek
instructive, and at this stage of the litigation, the Court declines to limit the
avenues for relief that plaintiffs may pursue when it comes time for them to prove
their case. Id. Therefore, the motion to dismiss is denied as to Count II.
c. Class Action Allegations
Red Parrot also asserts that Camp Drug’s class action allegations are
insufficient to survive a motion to dismiss. Red Parrot attempts to argue that
Camp Drug’s complaint fails to allege the attributes of those similarly situated fax
recipients and fails to allege the number of faxes sent or where they were sent.
However, the Court finds that Red Parrot’s argument is premature. It is simply
not practical at this stage of the litigation to preclude the Court from obtaining a
full assessment of the litigation before deciding the class certification issue and
therefore, the Court agrees with Camp Drug. The inquiry into whether a plaintiff
has fulfilled Rule 23 class action requirements is not an appropriate inquiry at the
motion to dismiss stage, and the Court finds that it is more appropriate to handle
this issue in a class certification motion after proper discovery related to this
issue has occurred.

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IV.

Conclusion

Accordingly, the Court DENIES defendant Red Parrot’s motion to dismiss
plaintiff’s complaint. (Doc. 14).

Judge Herndon
2018.01.23
17:01:48 -06'00'

IT IS SO ORDERED.

United States District Judge

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