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Paldo Sign and Display Co. v. Topsail Sportswear

January 15, 2010

PALDO SIGN AND DISPLAY COMPANY, PLAINTIFF,
v.
TOPSAIL SPORTSWEAR, INC., DEFENDANT.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM, OPINION AND ORDER

Before the court is defendant Topsail Sportswear Inc.'s motion to dismiss Counts II and III of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion to dismiss [55] is granted.

BACKGROUND

On January 16, 2007, plaintiff Paldo Sign and Display Company received a fax from Topsail advertising its services. Paldo Sign did not solicit or give Topsail permission to send the fax. At the bottom of the fax, there was a phone number and a fax number for Paldo Sign to contact if it did not want to receive any future advertisements. The complaint alleges that Topsail sent the same or a similar fax to thirty-nine other recipients. Paldo Sign does not allege that it received any subsequent faxes from Topsail.

Paldo Sign filed a three-count complaint on August 22, 2007 in the Circuit Court of Cook County, Illinois. Count I is for a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227. Count II is a claim for common law conversion. Count III is for a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2. The claim also contains class allegations. On October 17, 2008, Topsail filed a Notice of Removal to this court and now seeks to dismiss Counts II and III of the complaint for failure to state a claim upon which relief can be granted.

DISCUSSION

When evaluating a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Dismissal of an action under Rule 12(b)(6) is warranted only if "no relief could be granted under any set of facts that could be proved consistent with the allegations." Christensen v. County of Boone, IL, 483 F.3d 454, 458 (7th Cir. 2007).

I. Count II -- Conversion

Topsail first seeks to dismiss the claim for conversion alleged in Count II. Paldo Sign asserts that it has an absolute and unconditional right to possession and use of its fax machine, the toner used to print the fax, the paper the fax was printed on, and its employees' time in disposing of the fax. Paldo Sign claims that Topsail misappropriated these items and services to its own use when it sent the fax. To state a claim for conversion under Illinois law, a plaintiff must allege the following: (1) it has a right to the property; (2) it has an absolute and unconditional right to the immediate possession of the property; (3) it made a demand for possession; and (4) the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property. Cirrincione v. Johnson, 184 Ill.2d 109, 114 (1998).

Topsail argues that by sending the fax, it never exercised control, dominion, or ownership over plaintiff's fax machine, toner or paper. Second, Topsail argues that the court should apply the maxim of de minimus non curat lex or "the law does not concern itself with trifles."

Brandt v. Bd. of Educ. of City of Chicago, 480 F.3d 460, 465 (7th Cir. 2007). In essence, Topsail argues, the total possible damages for the conversion claim can only amount to a few pennies, and that this fact merits dismissal of Count II.

Topsail's first argument is without merit. The material alteration of a chattel can constitute conversion, even if Topsail never took actual possession of the chattel. See Loman v. Freeman, 229 Ill.2d 104, 127-28 (2008). This view is also expressed in the Restatement (Second) of Torts § 226, cmt. B (1977), which states: "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." In this case, the paper the fax was printed on was so materially changed that it could no longer be used to receive other faxes, or for any other practical matter. The same can be said for the toner used to print the fax. Therefore, there is technically an adequate basis for Paldo Sign's conversion claim.

However, the court is persuaded by Topsail's alternative argument raising the de minimus maxim. This venerable maxim "is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept." Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992). Arguably, the framers of the Bill of Rights incorporated this maxim into the Seventh Amendment, which limits the right to a jury trial in civil cases only when the amount in controversy exceeds twenty dollars. U.S. CONST. amend. VII. In Rossario's Fine Jewelry, Inc. v. Paddock Publications, Inc., 443 F. Supp. 2d 976 (N.D. Ill. 2006), Judge Shadur acknowledged that "the ancient maxim 'de minimus non curat lex' might well have been coined" for a conversion claim brought by a plaintiff who alleges that it lost one page of paper and a minuscule amount of toner during the printing of an unsolicited fax. 443 F. Supp 2d at 980. As alleged in the complaint, Topsail's damages could not amount to more than a few pennies. As such, this court concurs with Judge Shadur's reasoning in Rossario and finds the de minimus standard applicable in this case.

Paldo Sign contends that Illinois allows recovery of nominal damages in conversion cases, and, as such, the de minimus maxim is inapplicable. In other words, if Illinois allows for a judgment for conversion when there are no damages, a case should not be dismissed when there are actual damages, no matter how minuscule those damages may be. However, the concept of ...


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