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Spivey v. Adaptive Marketing

January 8, 2009

QUINTEN E. SPIVEY, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
ADAPTIVE MARKETING, LLC, DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

I. Introduction

Plaintiff Quinten Spivey, individually and on behalf of others similarly situated, alleges that Adaptive Marketing, LLC, ("Adaptive") charged him excessive and unauthorized amounts for membership in a retail discount program. Spivey submits that - according to Adaptive -he authorized a membership in the Homeworks Plus program during a January 2003 telephone conversation. Adaptive has produced what it claims is a recording of that conversation:

Female: Thank you for your order. We're sending you a risk free 30-day membership to Homeworks, offering hundreds of dollars in savings at stores like The Home Depot, K-Mart, Linens & Things and many more. After 30 days the service is extended to a full year for just $8.00 per month - just $96.00 annually. Billed in advance as Homeworks to the credit card you are using today. You will be charged an annual fee at the end of your 30-day trial period at the beginning of each new membership year [sic]. If you want to cancel, simply call the toll free number that appears in your kit in the first 30 days and you will not be billed. If you don't save hundreds of dollars in your first year, just call and you'll get a full refund. So look for your kit in the mail is that okay? [sic].

Male: Okay.

First Amended Complaint ("FAC"), ¶ 29. According to Spivey, he does not recall participating in the conversation and cannot confirm that the voice on the recording is his. He contends that he received no "welcome kit" from Adaptive or, if he did, it was designed to look like junk mail so that he discarded it without opening it. Id. ¶¶ 30, 31.

Spivey alleges that he did not read or sign the Membership Agreement that Adaptive contends governs the relationship between him and Adaptive and, furthermore, that it is not referenced in the recording. Id. ¶ 33. The Membership Agreement provides, in relevant part:

Payment of Enrollment Fee. The payment of your trial period and Enrollment Fee (comprised of a Membership Fee and, if applicable, shipping and handling charges) is made automatically by a direct charge(s) to the billing source authorized by You in accordance with the payment terms to which You agreed. We reserve the right to increase or decrease the Enrollment Fee for each renewal Membership Term effective upon renewal of your membership. Under the monthly billing plan, We may, at our discretion, increase the monthly Enrollment Fee once in any twelve-month period not more than $2.00 per month. Id. ¶34 (emphasis in FAC).

Spivey alleges that he originally discovered the unauthorized charges to his credit card in his January 2007 billing statement. Through review of previous billing statements and case-related discovery, Spivey learned that Adaptive charged him $96.00 on February 26, 2003, plus miscellaneous shipping and handling charges; $149.95 on December 24, 2003; $199.95 on December 23, 2004; $199.95 on December 27, 2006; and two additional $199.95 charges in 2005 and 2006. Id. ¶¶ 20-22. Spivey contends that, upon learning of the charges to his credit card, he called the telephone number listed on the billing statement and explained to the Adaptive representative that he had not authorized these charges. Id. ¶ 24. Adaptive's representative agreed to refund $179.70 of the charges, which represented a pro rata refund of the December 27, 2006 charge; Adaptive refused to refund any other portion of the charges to Spivey's credit card. Id. ¶¶ 25, 26.

Adaptive moves to dismiss Spivey's complaint pursuant to FED. R. CIV. P. 12(b)(6) (Doc. 64) on the following grounds: (1) claims for breach of contract (Count I) fail because the provision allegedly breached by Adaptive does not, by its own terms, apply to Spivey's membership; (2) claims of unjust enrichment (Count II) fail because they impermissibly rely on Spivey's allegations that an enforceable contract existed between the parties and because they merely restate Spivey's defective breach of contract claim; and (3) Spivey's claims are barred by Illinois's Voluntary Payment Doctrine. The matter is fully briefed and ready for disposition.

II. Legal Standard

When ruling a motion to dismiss under Rule 12(b)(6 ), the Court does not decide whether the plaintiff has a winning claim but looks only at the sufficiency of the complaint. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508 (2002); McCormick v. City of Chicago, 230 F.3d 319, 323-26 (7th Cir. 2000) (citing Leatherman v. Tarrant County, 507 U.S. 163 (1993)). Under the standard enunciated by the Supreme Court inBell Atlantic Corp. v. Twombly, a complaint may no longer survive dismissal by simply satisfying the notice function of FED. R. CIV. P. 8(a).

Twombly, ---U.S. ----, 127 S.Ct. 1955, 1964-66 (2007). For a complaint to survive a 12(b)(6) motion to dismiss, it must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon which the claim rests. E.E.O.C. v. Concentra Health Serv., Inc., 496 F,3d 773, 776 (7th Cir. 2007) (interpreting Bell Atlantic). Second, the allegations must plausibly suggest that the plaintiff has a right to relief, ...


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