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G.M. Sign, Inc. v. Stergo

December 23, 2009

G.M. SIGN, INC., AN ILLINOIS CORPORATION, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFF,
v.
STEVE STERGO D/B/A STERGO ROOFING, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

Plaintiff filed a three -count complaint against Defendant alleging violation of federal and state statutory law and common law. In its complaint, Plaintiff alleges that Defendant sent an unsolicited facsimile ("fax") advertisement to Plaintiff and the class of potential plaintiffs it seeks to represent. This advertisement was a one-page solicitation for business and included a "remove" number-- a telephone number that could be called to stop the receipt of future advertisements. Count I of the complaint claims that Defendant's alleged sending of a fax advertisement violated the federal Telephone Consumer Protection Act 47 U.S.C § 227 ("TCPA"). In Count II Plaintiff states a common law claim for conversion. Finally, Count III claims a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 ("ICFA"). The complaint was properly removed to Federal Court, and Defendant now moves to dismiss Counts II and III of the complaint pursuant to Federal Rule 12(b)(6).

II. STANDARD OF REVIEW

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. In ruling on such a motion, I accept as true all well-pleaded factual allegations in the complaint and draw all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To state a claim, the complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). That said, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what . . . the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation and citation omitted). The "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555).

III. DISCUSSION

A. Count Two of the Complaint

Defendant argues that Count Two should be dismissed for two reasons: (1) because Plaintiff is unable to allege that Defendant exercised dominion or control over its property; and (2) because Plaintiff is unable to allege that it suffered anything more than trivial inconvenience or expense.

To state a claim for conversion under Illinois law, a plaintiff must allege: (1) unauthorized and wrongful control, dominion, or ownership by defendant over plaintiff's property; (2) plaintiff's right in the property; (3) plaintiff's absolute and unconditional right to the immediate possession of the property; and (4) a demand for possession of the property. General Motors Corp. v. Douglass, 565 N.E.2d 93, 97 (Ill.App.Ct. 1990). Plaintiff's conversion claim is based on the allegation that Defendant, by sending an unsolicited fax, converted the toner and paper in its fax machine for Defendant's own use. Plaintiff alleges that it, and other potential class members, had "an unqualified and immediate right to possession of their fax machines, paper, toner, and employee time"; that by sending unsolicited faxes, Defendant deprived Plaintiff and other class members of "the use of the fax machines, paper, toner, and employee time"; that Defendant knew or should have known that its misappropriation of the fax machines, toner and paper was wrong and without authorization; and that Plaintiff and other class members suffered damages as a result of Defendant's actions.

Defendant argues that the sender of a fax does not gain control of the receiver's property because the paper, toner, and all functions of the recipient's fax machine remain in control of the recipient. Defendant states that because conversion requires "some assumption of control over the Plaintiff's property" the mere act of sending a fax cannot be a conversion of property. Additionally, Defendant argues that there can be no conversion of Plaintiff's employees' time because conversion involves only tangible property.

As an initial matter, Plaintiff's assertion that Defendant converted Plaintiff's employees' time fails under a conversion theory as "a person's time is not a chattel over which plaintiff had the immediate and unconditional right to possess." Stonecrafters, Inc. v. Foxfire Printing and Packaging, Inc., 633 F.Supp.2d 610, 613 n1 (N.D. Ill. 2009). Plaintiff does however sufficiently allege Defendant's conversion of its property despite the fact that the paper and toner were never physically possessed by Defendant. Under Illinois law and the Restatement (Second) of Torts, a tort for conversion can arise from "any material alteration in characteristics to chattel."

R. Rudnick & Co. v. G.F. Protection, Inc., No. 08 C 1856, 2009 WL 112380, at *3 (N.D. Ill. Jan. 15, 2009); See Loman v. Freeman, 890 N.E.2d 446 (Ill. 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."). Although Plaintiff relies on Rossario's Fine Jewelry v. Paddock Publications, Inc. 443 F.Supp.2d 976, 980 (N.D. Ill. 2006) (when defendant never came into possession of plaintiff's ink, toner and paper, finding that defendant "assumed control, dominion or ownership over the property" would be "stretch[ing] that language beyond its normal meaning") he ignores the contradictory and more recent holdings of Stonecrafters, 633 F.Supp.2d at 613 ("material alteration of a chattel can constitute conversion, even if the defendant never took actual possession of the chattel"), Centerline Equipment Corp. v. Banner Personnel Service, Inc., 545 F.Supp.2d 768, 782 (N.D. Ill. 2008) (defendant's assertion that it cannot be liable for conversion because it never physically possessed paper, ink and toner is "contrary to Illinois law"), and R.Rudnick & Co., 2009 WL 112380, at *3 (defendant's physical possession of the paper, ink and toner is not material because there was a "material alteration in characteristics" to the chattel). As has been noted by the Illinois Appellate Court, conversion does not center on the "acquisition by the wrongdoer, but a wrongful deprivation of the owner thereof." Jensen v. Chi. & W. Ind. RR., 419 N.E.2d 578, 593 (Ill.App.Ct. 1981). A reading of the Complaint reveals that Plaintiff has specifically alleged that it was deprived of paper and toner because of Defendant's sending of an unauthorized fax. As acknowledged in Centerline, "once paper has an advertisement printed upon it, it is no longer useable for other purposes, nor can the ink be recovered for reuse." 545 F.Supp.2d at 782. Therefore, Defendant's argument that he could not have taken possession or exercised control over Plaintiff's property by sending a fax fails.

Defendant next argues that Plaintiff's conversion claim must fail because it is unable to allege anything more than a trivial inconvenience or expense. The doctrine of de minimus non curate lex, or "the law doesn't concern itself with trifles," is well established in the courts. Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 465 (7th Cir. 2007); Wis. Dep't of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231(1992). The application of this principle to cases such as this has been discussed in numerous court opinions, many of which have been cited to by the parties.*fn1

Before a plaintiff can validly represent a class, he must have a valid cause of action. Chambers v. Am. Trans. Air, Inc., 17 F.3d 998, 1006 (7th Cir. 1994). "Cumulative allegations of a putative class cannot be used to prop up an otherwise trivial claim that is unable to stand on its own." Stonecrafters,633 F.Supp.2d at 614. Defendant argues that the doctrine of de minimus non curat lex applies to this case explaining that Plaintiff's claim based on the sending of one fax advertisement does not rise to the level of 'seriousness' required by Illinois law and that it cannot aggregate alleged damaged to other potential members of a class to meet this burden. Plaintiff responds by arguing that because Illinois law allows for the recovery of nominal damages for the tort of conversion, the de ...


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