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Locklear Electric, Inc. v. Lay

December 7, 2009


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


I. Introduction

Locklear Electric, Inc., has filed a putative class action complaint against Theodore and Norma Lay d/b/a Ted Lay Real Estate Agency (collectively, "the Lays"),*fn1 complaining that it received an unsolicited fax advertisement from the Lays on June 13, 2006. On August 4, 2009, the undersigned Judge determined that this Court enjoys subject matter jurisdiction over the above-captioned case, which was timely removed from the Circuit Court of Madison County, Illinois. Prior to this determination, on July 24, 2009, the Lays moved to dismiss two counts of Locklear's three-count complaint.

That fully-briefed dismissal motion (Doc. 8) comes now before the Court.

II. Applicable Legal Standards and Analysis

Locklear claims that the Lays faxed it an unsolicited advertisement on June 13, 2006. Locklear believes that the Lays faxed the same or similar advertisements to 39 or more other recipients without first receiving their invitation or permission. Locklear contends that it and other class members have no means to avoid receiving illegal faxes because fax machines are left on to receive faxes that their owners desire to receive.

Locklear alleges that the Lays violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA") (Count I), committed the tort of conversion (Count II) and violated the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 ("ICFA") (Count III). Locklear seeks $500.00 in damages for each violation of the TCPA and an injunction barring the Lays from sending unsolicited faxed advertisements to Illinois consumers plus attorneys' fees and costs.

Having answered Count I of Locklear's complaint, the Lays urge the Court to dismiss Counts II and III for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Dismissal is warranted under Rule 12(b)(6) if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007).

In making this assessment, the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in plaintiff's favor.Tricontinental Industries, Inc., Ltd. v. PriceWaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert. denied, 128 S.Ct. 357 (2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006); Corcoran v. Chicago Park District, 875 F.2d 609, 611 (7th Cir. 1989).

Stated another way, the question on a Rule 12(b)(6) motion is whether the complaint gives the defendant fair notice of what the suit is about and the grounds on which the suit rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Mosely v. Board of Education of City of Chicago, 434 F.3d 527, 533 (7th Cir. 2006). Additionally, although federal complaints need only plead claims not facts, the pleading regime created by Bell Atlantic requires the complaint to allege a plausible theory of liability against the defendant. Sheridan v. Marathon Petroleum Co., LLC, 530 F.3d 590, 596 (7th Cir. 2008). See also Limestone Dev. Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803-04 (7th Cir. 2008).

In the instant case, the issues are dual - whether Count II must be dismissed because it is barred by the doctrine of de minimis non curat lex, or the law does not concern itself with trifles, and whether Count III must be dismissed because the alleged conduct does not violate the ICFA. As explained below, dismissal is not warranted.

A. Conversion

Conversion under Illinois law is "the unauthorized deprivation of property from a person entitled to its possession." IOS Capital, Inc. v. Phoenix Printing, Inc., 808 N.E.2d 606, 610 (Ill.App. 4 Dist.2004), citing Sandy Creek Condominium Ass'n v. Stolt & Egner, Inc., 642 N.E.2d 171, 174 (1994). To state a claim for conversion, the plaintiff must allege (1) a right in the property, (2) a right to immediate possession, (3) wrongful control by the defendant, and (4) a demand for possession." Id., citing Cirrincione v. Johnson, 703 N.E.2d 67, 70 (1998); Green v. Anthony Clark Intern. Ins. Brokers, Ltd., 2009 WL 2515594, *3 (N.D.Ill. 2009).

The Lays' sole argument against conversion is that the law does not concern itself with trifles, that is, that Locklear's damages are ...

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