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Stonecrafters, Inc. v. Foxfire Printing and Packaging

July 8, 2009

STONECRAFTERS, INC., PLAINTIFF,
v.
FOXFIRE PRINTING AND PACKAGING, INC. DEFENDANT.



The opinion of the court was delivered by: Frederick J. Kapala District Judge

MEMORANDUM OPINION AND ORDER

FREDERICK J. KAPALA, District Judge

What started off as a dispute over the unauthorized use of a single sheet of paper from a fax machine has resulted, somewhat ironically, in the depletion of hundreds, if not thousands, of additional pieces of paper in furtherance of this litigation. It is with some hope of reducing the unnecessary state-law claims that often are brought in these "fax-blasting" cases that the court adds more pages to the burgeoning pile.

I. BACKGROUND

Plaintiff, Stonecrafters, Inc., filed a three-count complaint against defendant, Foxfire Printing and Packaging, Inc., alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (Count I), the common law tort of conversion (Count II), and the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/2 (Count III). According to the allegations in the complaint, on or about October 9, 2008, defendant sent plaintiff a one-page fax advertisement without having received express invitation or permission to do so. Plaintiff further alleges that it suffered damages as a result of the unwanted fax, including a loss of the paper and toner used to print the fax and a loss of its employees' time that was spent receiving, reviewing, and routing the fax. Plaintiff purports to bring its complaint as a class action, asserting that defendant faxed the same or similar advertisements to "forty or more persons."

Currently before the court is defendant's motion to dismiss Counts II and III of the complaint, filed pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion to dismiss is granted.

II. ANALYSIS

A. Count II -- Conversion

In its motion to dismiss, defendant argues that Count II of plaintiff's complaint fails to state a claim for conversion because defendant never exercised dominion and control over the paper and toner used to print the fax advertisement. Defendant also argues that the de minimis nature of the injury alleged is insufficient to give rise to a claim for conversion.

Defendant's first argument lacks merit and does not warrant much discussion. The material alteration of a chattel can constitute conversion, even if the defendant never took actual possession of the chattel. See, e.g., Loman v. Freeman, 229 Ill. 2d 104, 127-28 (2008); Restatement (Second) of Torts § 226 ("One who intentionally destroys a chattel or so materially alters its physical condition as to change its identity or character is subject to liability for conversion to another who is in possession of the chattel or entitled to its immediate possession."). When defendant sent the alleged unsolicited fax advertisement to plaintiff, it intended that the fax would be printed, and therefore intended for plaintiff's paper and toner to be materially altered. See Am. States Ins. Co. v. Capital Assocs. of Jackson County, Inc., 392 F.3d 939, 943 (7th Cir. 2004) ("[A]ll senders know exactly how faxes deplete recipients' consumables."). Thus, plaintiff's allegations technically are sufficient to state a claim for conversion (although the claim is limited to the loss of one piece of paper and an inconsequential amount of toner).*fn1 However, defendant's alternative argument concerning the de minimis nature of plaintiff's injury persuades the court to dismiss the conversion claim raised in Count II.

The doctrine of de minimis non curat lex, or "the law doesn't concern itself with trifles," Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 465 (7th Cir. 2007), is a "venerable maxim" that "is part of the established background of legal principles against which all enactments are adopted," Wis. Dep't of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992). As the court stated in Rossario's Fine Jewelry, Inc. v. Paddock Publications, Inc., 443 F. Supp. 2d 976 (N.D. Ill. 2006), "the ancient maxim 'de minimis non curat lex' might well have been coined" for the occasion in which a conversion claim is brought based solely on the loss of paper and toner consumed during the generation of a one-page unsolicited fax advertisement. Id. at 980. This court agrees with that observation and finds that the de minimis doctrine is applicable in this case, given that plaintiff's actual damages (as set forth in its complaint) "are minuscule to the point of nonexistent." Brandt, 480 F.3d at 465; see also Kim v. Sussman, No. 03 CH 07663, 2004 WL 3135348, at *3 (Ill. Cir. Oct. 19, 2004) (noting that the actual damages from the conversion of the paper and toner necessary to print an unsolicited fax advertisement "are minuscule, i.e., pennies per plaintiff"). As such, this court will not entertain plaintiff's trivial claim of conversion raised in Count II of its complaint.

This court recognizes that its conclusion differs from the approach taken in Centerline Equipment Corp. v. Banner Personnel Service, Inc., 545 F. Supp. 2d 768 (N.D. Ill. 2008), and the recent cases which have followed that court's analysis.*fn2 Although faced with "nearly identical" allegations, the Centerline court disagreed with Rossario's and declined to apply the de minimis doctrine to the plaintiff's conversion claim. Id. at 782. Instead, the Centerline court concluded that "Illinois law does not require application of the de minimis rule to class conversion claims founded upon very small individual losses, so long as those losses can plausibly be inferred to be substantial in the aggregate." Id. Respectfully, this court is drawn to a conclusion which differs from Centerline for two reasons.

First, although the Centerline court recognized that the claimed loss of one sheet of paper might be "niggling," it nevertheless found that the plaintiff stated a claim for conversion because "a class claim could be more substantial, and class treatment is regularly afforded in cases where no individual plaintiff has suffered any great loss." Id. However, this aggregate-harm approach conflicts with the general rule that a plaintiff must first have a valid cause of action in his own right before he can proceed to represent a class. See, e.g., Chambers v. Am. Trans Air, Inc., 17 F.3d 998, 1006 (7th Cir. 1994); W. Ry. Devices Corp. v. Lusida Rubber Prods., Inc., No. 06 C 0052, 2006 WL 1697119, at *6 (N.D. Ill. June 13, 2006) ("[W]here a putative class representative has no valid claim in his own right, he cannot bring such a claim on behalf of a putative class."). Cumulative allegations of a putative class in a complaint cannot be used to prop up an otherwise trivial claim that is unable to stand on its own.

Second, the Centerline analysis appears to conflate the concept of nominal damages with the doctrine of de minimis non curat lex when it states: "the [de minimis] maxim may not apply at all, as Illinois courts have permitted conversion claims to be brought for only nominal damages." 545 F. Supp. 2d at 782 (citing Ill. Educ. Ass'n v. Ill. Fed'n of Teachers, 107 Ill. App. 3d 686, 689 (1982)).*fn3 The Centerline court goes on to conclude that "[i]f Illinois courts recognize conversion claims where there are no damages at all, they might well also recognize actions for very small damages." Id. In this court's view, however, the propriety of awarding nominal ...


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