United States District Court, N.D. Illinois, Eastern Division
June 8, 2004.
TERRY XYDAKIS, on behalf of himself and all other persons similarly situated, Plaintiff,
TARGET, INC., d/b/a MARSHALL FIELDS, Defendant.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Terry Xydakis brought this action on behalf of
himself and other similarly situated persons alleging violations
of the Illinois Consumer Fraud and Deceptive Business Practices
Act (DBPA), 815 ILCS 505/1 et seq. Defendant Target, Inc. filed
a motion to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). For the following reasons, defendant's
motion is granted.
The facts are taken from plaintiff's complaint. On August 4,
2002, defendant allegedly placed an advertisement in the Chicago
Tribune offering to sell an All-Clad grill pan, originally priced
at $130.00, for $39.99, from August 4, 2002, through August 10,
2002, at all Chicagoland Marshall Field stores (which are owned
and operated by defendant Target). On August 7, 2002, after
seeing that advertisement, plaintiff went to the Oak Brook
Marshall Field store intending to purchase the grill pan. When he
arrived at the store, plaintiff was told that the store had sold
out of the grill pans and he was not offered a rain check or a
Plaintiff then went to another Marshall Field store in Orland
Square Mall seeking to buy the pan. Again, he was told that none was available but that his
name would be added to a waiting list. On August 12, 2002,
plaintiff returned to the Orland Square store, hoping that the
pans were in stock. He was then told that the grill pans had been
discontinued by the manufacturer and would no longer be carried
by Marshall Field's. Again, he was told that there were no rain
checks or substitute items available. In a subsequent
conversation with defendant's employees, plaintiff learned that a
substitute item had been available but that it too was sold out.
In October 2002, plaintiff learned that Carson Pirie Scott
stores were carrying the All-Clad grill pan and tried the
Marshall Field stores again, but was again told that the item had
been discontinued. Plaintiff finally decided to buy the grill pan
from Carson Pirie Scott for $130.00.
In deciding a Rule 12(b)(6) motion to dismiss the court assumes
the truth of all well-pleaded allegations, making all inferences
in the plaintiff's favor. Sidney S. Arst Co. v. Pipefitters
Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir. 1994). The
court should dismiss a claim only if it appears "beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). While the complaint need not provide the
correct legal theory to withstand a Rule 12(b)(6) motion, it must
allege all of the elements necessary to recover. Ellsworth v.
City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert.
denied, 475 U.S. 1047 (1986).
The DBPA is designed to protect consumers from unfair or
deceptive acts in the course of trade or commerce. 815 ILCS 505/1
et seq.; Skyline Intern. Development v. Citibank, F.S.B.,
706 N.E.2d 942, 946 (Ill.App.1 Dist. 1998). The Act allows a private
person injured by a violation of the Act to bring a civil action
against the party committing the violation. 815 ILCS 505/10a. To adequately plead such a claim, a plaintiff must
allege a deceptive act by the defendant in the course of business
intended to induce reliance by the plaintiff that causes actual
damages. Oliveira v. Amoco Oil, 776 N.E.2d 151, 160 (Ill.
2002). Unlike an action brought by the attorney general pursuant
to 815 ILCS 505/2, a private civil action requires proof of
Plaintiff sufficiently pleads a violation of the DBPA by the
defendant. The Act specifically prohibits the advertising of
goods or services while not intending to sell a reasonable
quantity. 815 ILCS 510/2(10). Such conduct is also prohibited by
the Illinois Administrative Code. 14 IL ADC 470.310. These
regulations were designed to prevent so-called "bait and switch"
schemes, whereby the seller lures a consumer into the store with
an advertisement it does not intend to honor, and then sells the
consumer a more expensive item. Taking plaintiffs allegations as
true, defendant's advertisement constituted "bait" to get
plaintiff into the store, violating the DBPA.
Plaintiff fails to allege the "switch" by defendant, however,
and therefore fails to allege any actual damages caused by
defendant's acts. Defendant's employees made no attempt to sell
plaintiff a more expensive item and mentioned the sold-out
replacement item only after it was brought up by plaintiff. There
is nothing in the complaint to indicate that plaintiff spent any
money at any Marshall Field store. While he did end up purchasing
the grill pan for its full price of $130.00, this certainly was
not induced by defendant's advertising since he bought the pan at
a competing store.
Plaintiff argues that he need not plead damages because he is
bringing this action for injunctive relief on behalf of a class
who was affected by defendant's actions. 815 ILCS 505/10a is the
only section in the DBPA that authorizes suits for a private
action and, while it does allow for injunctive relief, such an action may only be brought by a
person who suffers actual damages. Smith v. Prime Cable of
Chicago, 658 N.E.2d 1325, 1337 (Ill.App. 1 Dist. 1995).
Plaintiff here does not meet that qualification and therefore
fails to state a claim as defined by the Act.
For the foregoing reasons, defendant's motion to dismiss is
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