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Rossario's Fine Jewelry, Inc. v. Paddock Publications

August 22, 2007

ROSSARIO'S FINE JEWELRY, INC., ETC., PLAINTIFF,
v.
PADDOCK PUBLICATIONS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Rossario's Fine Jewelry, Inc. ("Rossario's") originally filed a putative class action complaint in the Circuit Court of Cook County, Illinois, charging that Paddock Publications, Inc. ("Paddock") violated the Telephone Consumer Protection Act (the "Act," 47 U.S.C. §227*fn1 ) and the Illinois Consumer Fraud Act (815 ILCS 505/2) and also committed common law conversion when it sent an allegedly unsolicited advertisement to Rossario's fax machine on May 30, 2006. Paddock removed the case to this District Court pursuant to 28 U.S.C. §1331, and this Court then dismissed both state claims on Paddock's Fed. R. Civ. P. ("Rule") 12(b)(6) motion.

Having completed discovery on the remaining count, Paddock has then moved to resolve Rossario's claim through summary judgment pursuant to Rule 56, and both sides have now spoken to that motion. For the reasons stated in this memorandum opinion and order, Paddock's motion is granted.

Summary Judgment Standard

Well-established Rule 56 principles impose on parties wishing to prevail on summary judgment the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose this Court must consider the evidentiary record in the light most favorable to Rossario's and draw all reasonable inferences in its favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment, Rossario's must produce "more than a mere scintilla of evidence to support [its] position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.). If the record were to reveal that no reasonable jury could find in favor of Rossario's, summary judgment must be granted (see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

What follows is a summary of the facts, viewed in the light most favorable to Rossario's under the criteria prescribed by Rule 56 and this District Court's LR 56.1.*fn2 And that obviates the need, in the evidentiary recital, to repeat "according to Rossario's" or the like or to identify any conflicting account, though inclusion of the latter is sometimes called for as a purely informational matter.

Background

Rossario's is an Illinois corporation located in Wood Dale, Illinois run by its sole shareholder, officer and director Mario Aliano ("Aliano")(P. St. ¶¶1-2). During the relevant time period Aliano was Rossario's only employee (id. ¶3). Paddock is a Delaware corporation doing business in Cook County, Illinois that publishes, markets and sells The Daily Herald newspaper.

It is undisputed that Toni Ventrella ("Ventrella"), an advertising sales executive for Paddock whose job responsibilities include "managing existing relations with Paddock advertising customers, and contacting potential new customers for advertising business," (P. St. ¶¶13-14), faxed an advertisement to Rossario's on January 6, 2006 (id. ¶45) and again on May 30, 2006 (id. ¶12). At the heart of this controversy is a dispute about whether Ventrella had previously communicated with Rossario's and obtained permission to send it any such fax advertisements detailing Paddock's promotional offers.

Ventrella testified at her deposition that on November 2, 2005 she placed a phone call to Rossario's and asked to speak to the person responsible for advertising (P. St. ¶36). When she was told that person was not available, she asked the person who answered the phone if she could send additional information regarding Paddock's advertising promotions to Rossario's via fax (id. ¶39). Ventrella said that the person who answered the phone not only told her she could do so but also provided her with Rossario's fax number (id. ¶40). During discovery Paddock produced one of Aliano's business cards, which had Rossario's fax number in Ventrella's handwriting on the back (id. ¶18).

Aliano confirmed that Rossario's fax number, which has remained the same for its entire history (P. St. ¶21), is not printed on his business card and has never been published on the Internet, in the Yellow Pages or in any other location where the general public could obtain it (id. ¶¶23-26). Aliano's "explanation" as to Ventrella's possession of his business card and unpublished fax number is no explanation at all--it is simply an emphatic denial that he ever gave her or anyone from Paddock either of them (R. Mem. 5).

Paddock has also produced authenticated phone records from PAETEC Communications, Inc.*fn3 ("PAETEC") showing that a 50-second phone call from Paddock's phone number to Rossario's phone number did take place on November 2, 2005 (P. St. ¶¶31-34). Ventrella further testified that she followed up with Rossario's after that phone call by sending at least two other faxes from late 2005 through May 2006 (id. ¶43), including a January 6, 2006 fax detailing Paddock's Valentine's Day promotional offer (id. ¶44). Aliano admits that he received that fax, though it does not form the basis of the current Complaint.

Again on May 30, 2006 Ventrella sent a one-page fax to Rossario's fax number, this time with information about Paddock's advertising special for June 2006 (P. St. ¶51). It was that one-page fax sent to Rossario's fax number and individually addressed to "Mario-Rossario's Fine Jewelry" (id. ¶¶51-52) that stimulated the present effort by Rossario's to catch the brass ring of damages--and class damages, at that--under the Act.

For his part, Aliano denies that the phone call granting Ventrella permission to send Rossario's a fax ever took place. Aliano claims that he was Rossario's sole employee and the only person present in the store on November 2, 2005, and hence the only person who could have answered the phone that day (R.St. ΒΆΒΆ70-73). When asked if he recalled receiving any phone calls on that date, Aliano testified that he "probably" did receive phone calls, but he did not recall a conversation with Ventrella or anyone else from Paddock (though he did not recall with whom he did speak either (A. Dep. 122), and he denies that he or anyone else answering the phone at Rossario's ever received that phone call (id. at 123-24): "I am the only one there and I'm the only one that picks up the calls and I didn't speak with them." He also testified ...


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