The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
On October 18, 2006, Myron Curry, an employee at Defendant Banner Personnel Service, Inc. ("Banner") sent Plaintiff Centerline Equipment Corporation ("Centerline") a one-page fax promoting Banner's services. Plaintiff claims that this fax was unsolicited and therefore a violation of the Telephone Consumer Protection Act ("TCPA"), as well as an unfair practice under the Illinois Consumer Fraud Act ("ICFA"). Defendant denies both that the fax was unsolicited and that sending it was an unfair practice. Plaintiff has moved for summary judgment on both counts, and Defendant has moved for summary judgment on the ICFA count. For the reasons stated below, the court grants summary judgment in favor of Plaintiff on the TCPA claim and in favor of Defendant on the ICFA claim.
Defendant Banner is in the business of providing temporary staff to business clients. Several years before the transmission of the fax, Banner employees had placed a number of calls to Centerline. According to Banner's logs, between April 30, 2001 and November 15, 2002, Banner made five phone calls to Centerline, presumably to try to sell its services to Centerline. (Ex. E to Pl.'s 56.1.) These calls did not yield any business; it is undisputed that Centerline has never contracted with Banner for permanent or temporary staffing, or for any other service. (Pl.'s 56.1 ¶ 14.) After the November 15, 2002 call, the next recorded contact Banner made with Centerline was the October 18, 2006 fax at issue in this case. (Ex. E to Pl.'s 56.1.) The one-page fax reads:
Cover your holiday and vacation days now!
These are important days for you and your company Call someone you have depended on for 36 years!
Call Banner Personnel Service Since 1970 Call Myron Curry and get it done! (Ex. A to Compl.) Curry also sent the fax to other persons and entities contained in the Banner database. (Pl.'s Add'l Facts ¶ 2.) Curry did not send the fax to every person or entity contained in the database, and he claims that he "arbitrarily" chose who would receive the fax. (Curry Dep. 15:19-23, Ex. A to Pl.'s Add'l Facts.) Aside from noting that Banner does not maintain any records of parties that provided express consent to receive advertisements via fax, neither party has produced any evidence about who these other recipients were or whether Banner claims to have established a business relationship with any of them. (Pl.'s 56.1 ¶ 21.)
A note in Banner's logs suggests that Curry may also have called Centerline the day the fax was sent and spoken to someone there. Specifically, Banner's records for John Burnett, the owner of Centerline, reads as follows:
10/18/06 MC I faxed holiday/vacation flyer
MC I talked to him; he still does not use (Ex. E to Pl.'s 56.1.) This brief entry is the only evidence that Curry talked to Burnett at some point on October 18, 2006. Curry himself had no recollection of calling Burnett that day. (Curry Dep. 14:4-11, Ex. A to Pl.'s Add'l Facts.)
Plaintiff brought suit against Banner for statutory damages under the TCPA for transmitting an unsolicited fax. Plaintiff also sought actual damages-amounting to less than one dollar in costs for toner and paper-and attorney's fees under the ICFA, alleging that Banner's practice of sending an unsolicited fax amounted to an unfair trade practice.*fn1 The case was initially brought as a class action, but Plaintiff subsequently dropped the class allegations and proceeds here as the sole plaintiff. On March 3, 2008, the court denied Banner's motion to dismiss, holding, among other things, that the TCPA does not violate the First Amendment and that Plaintiff had adequately pleaded a claim under the ICFA. Centerline Equip. Corp. v. Banner Pers. Serv., Inc., 545 F. Supp. 2d 768 (N.D. Ill. 2008). Plaintiff now moves for summary judgment on both the TCPA and ICFA claims. Defendant opposes the motion and seeks summary judgment in its favor on the ICFA claim.
Summary judgment should be granted in favor of a party "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c).
Where both sides have moved for summary judgment, the court "construe[s] all facts and inferences therefrom in favor of the party against whom the motion under consideration is made." First State Bank of Monticello v. Ohio Cas. Ins. Co., 555 F.3d 564, 567 (7th Cir. 2009) ...