The opinion of the court was delivered by: JOE McDADE, Chief Judge
Before the Court is Magistrate Judge Byron G. Cudmore's Report
and Recommendation ("R & R") [Doc. # 35], addressing Defendant's
Motion to Dismiss Counts C, D and E of Plaintiff's Amended
Complaint [Doc. # 28]. Defendant has filed objections and
Plaintiff has responded. For the reasons that follow, the Court
will grant in part and deny in part Defendant's motion.
On March 30, 2004, Plaintiff filed a two count complaint in
state court seeking supplemental disability benefits from
Defendant. Thereafter, Defendant removed the action to this
Court. On January 27, 2005, Plaintiff filed a five count Amended
Complaint claiming breach of contract (Count A); violations of
Section 155 of the Illinois Insurance Code (Count B), the
Illinois Consumer Fraud and Deceptive Trade Practices Act (Count
C), and the Uniform Deceptive Trade Practices Act (Count D); and
common law fraud (Count E).
Defendant moved to dismiss Counts C through E of the Amended
Complaint arguing they failed to state a claim upon which relief
could be granted. Magistrate Judge Cudmore recommended that Count D be dismissed and that Plaintiff's claims based on her
allegation regarding misrepresentations about the supplemental
disability insurance policy benefits not being reduced by
payments from her primary disability insurer be dismissed. He
further recommended that the remaining claims in Counts C and E
stated a claim for relief and should not be dismissed. Defendant
objects to the recommendation that Counts C and E not be
dismissed. Plaintiff has responded to Defendant's objections but
has not filed any objections of her own.*fn1
A district court reviews de novo any portion of a Magistrate
Judge's Report and Recommendation to which "specific written
objection has been made." Fed.R.Civ.Pro. 72(b). "The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the
magistrate judge with instructions." Id. However, the Court
emphasizes that Rule 72(b) contemplates "specific, written
objections to the proposed findings and recommendations [of the
magistrate judge]." Id. (emphasis added).
When considering a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), the Court must view the complaint in the light most
favorable to the plaintiff and the complaint's well-pleaded
factual allegations must be accepted as true. Williams v.
Ramos, 71 F.3d 1246, 1250 (7th Cir. 1995). Therefore, a complaint can only be
dismissed if a plaintiff cannot prove any set of facts upon which
relief can be granted. Travel All Over the World, Inc. v.
Kingdom of Saudi Arabia, 73 F.3d 1423, 1429-30 (7th Cir. 1996).
However, the Court is not bound by a plaintiff's legal
conclusions. Baxter by Baxter v. Vigo County School Corp.,
26 F.3d 728, 730 (7th Cir. 1994).
In Counts C and E of the Amended Complaint, Plaintiff alleges
that Defendant violated the Illinois Consumer Fraud and Deceptive
Trade Practices Act and the Uniform Deceptive Trade Practices Act
(Count C) and that it committed common law fraud (Count E) when
it made certain representations in a document (the
"communication")*fn2 offering supplemental disability
insurance to Plaintiff (as a Western Illinois University
employee). In particular Plaintiff alleges Defendant represented
(1) that the disability coverage was "supplemental" when it was
actually additional coverage under which Defendant made its own
determination of disability and provided coverage on different
terms, (2) that the coverage would make Plaintiff's disability
insurance coverage "comparable to a corporate plan of benefits"
when in fact it would not because separate disability
determinations would be made by the supplemental company and the
primary company which would not happen with a corporate plan, and
(3) that the primary insurer would make the disability
determination for the supplemental coverage when in fact the
claims were determined by Defendant and subject to deferential review in this Court.*fn3
Plaintiff's Illinois Consumer Fraud and Deceptive Trade
Practices Act and Uniform Deceptive Trade Practices Act (Count C)
claims are time barred.
In its motion to dismiss, Defendant argues, among other things,
that Count C of Plaintiff's Amended Complaint is barred by the
three-year statute of limitations. In response, Plaintiff argues
that the Amended Complaint relates back to the original complaint
thus making Count C timely. Under Illinois law, an amendment
relates back to the original complaint when it arises out of the
same transaction or occurrence as the one identified in the
original complaint. Schorsch v. Hewlett-Packard, Co.,
417 F.3d 748, 751 (7th Cir. 2005). Stated another way, "an amendment
relates back in Illinois when the original complaint `furnished
to the defendant all the information necessary . . . to prepare a
defense to the claim subsequently asserted in the amended
complaint.'" Id. citing Boatmen's National Bank of
Belleville v. Direct Lines, Inc., 56 N.E.2d 1101, 1107 (Ill.
The Court finds that Plaintiff's Count C does not relate back
to the original complaint. Plaintiff's original complaint alleged
claims for breach of contract and violation of Section 155 of the
Illinois Insurance Code arising from the denial of disability
benefits to Plaintiff. The communication relied upon in the
Amended Complaint is not mentioned anywhere in the original complaint, nor are the relied upon alleged misrepresentations.
The original complaint focused on the denial of Plaintiff's
disability claim,*fn4 not on the alleged conduct which
induced Plaintiff to purchase the insurance as the Amended
Complaint does. Consequently, the Court finds that the original
complaint does not furnish Defendant with all of the ...