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Ciszewski v. Denny's Corp.

June 2, 2010


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Jason Ciszewski, on behalf of a putative class, has sued Denny's Corporation for failing to inform consumers of the sodium content in its meals. The Court previously granted Denny's motion to dismiss, stating that it would enter judgment against Ciszewski unless he filed a proposed amended complaint that states one or more viable claims. Ciszewski v. Denny's Corp., No. 09-5355, 2010 WL 1418582, at *5 (N.D. Ill. Apr. 7, 2010). The Court assumes familiarity with that decision.

Ciszewski has filed a proposed amended complaint with claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), unjust enrichment, and breach of contract. Denny's objects to the amended complaint on the ground that it fails to state a claim.


District courts have discretion to grant or deny leave to amend a complaint. Villa v. City of Chi., 924 F.2d 629, 632 (7th Cir. 1991). Leave is inappropriate when, among other things, the amendment would be futile. Id. An amended complaint is futile if it cannot survive a motion to dismiss. London v. RBS Citizens, 600 F.3d 742, 747 n.5 (7th Cir. 2010); Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 974 (7th Cir. 2002).

To survive a motion to dismiss under Rule 12(b)(6), the complaint must include enough facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). When considering a motion to dismiss a complaint, the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).

A. ICFA Deception Claim

The Illinois Supreme Court has determined that a consumer cannot maintain a claim for deceptive conduct under ICFA absent a communication or advertisement from the defendant containing a deceptive misrepresentation or omission. De Bouse v. Bayer AG, 235 Ill. 2d 544, 555, 922 N.E.2d 309, 316 (2009). The Court dismissed Ciszewski's original ICFA deception claim, stating that "[b]ecause Ciszewski identifi[ed] no communication that he received that was generated by Denny's, he . . . failed to plead the circumstances constituting the fraud with the particularity required by Rule 9(b)." Ciszewski, 2010 WL 1418582, at *3. Ciszewski claims the Court should grant him leave to amend because he now alleges that, prior to the purchases, Denny's defrauded him through its menus, signage, advertisements, and commercials by failing to disclose the levels of sodium in its meals.

ICFA requires the same particularity and specificity that is required for common law fraud under Rule 9(b). IWOI, LLC v. Monaco Coach Corp., 581 F. Supp. 2d 994, 1002 (N.D. Ill. 2008). "Specifically, a plaintiff must state the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated." Id. Denny's contends that Ciszewski has not alleged the circumstances of the fraud with sufficient particularity because he states that he saw the menu, signage, advertisements, and commercials but does not describe what was in those communications.

The Court agrees. Ciszewski has not identified what advertisements or other communications he saw. Ciszewski alleges that Denny's communicated the content of its meals through its communications, but he does not allege with any specificity what information was in those communications and when he received them. Because Ciszewski refers only generally to Denny's communications and does not describe any representations that Denny's made, he has not pled the ICFA deception claim with sufficient particularity. See e.g., Sefton v. Toyota Motor Sales U.S.A., No. 09-3787, 2010 WL 1506709, at *5 (N.D. Ill. Apr. 14, 2010) ("[ICFA claim] is insufficient to satisfy Rule 9(b) . . . [because, among other things, it] does not identify any specific communications, nor point to the particular signs, advertisements or manuals that were responsible for the misrepresentation.") (emphasis in original).

Nor has Ciszewski alleged how the claimed omission of the sodium content in Denny's menus or advertisements was deceptive. He does not claim that he believed Denny's meals were low in sodium content -- which would be a tough sell, in the Court's view. Nor does he allege that Denny's said anything in its menus or ads about the nutritional content of its meal items or anything that would have suggested to Ciszewski or to a reasonable consumer that the meal items met any sort of nutritional guidelines.

For these reasons, Ciszewski has failed to allege a viable ICFA deception claim.

B. ICFA Unfair Practice Claim

Ciszewski alleges in his amended complaint that Denny's practices regarding the sodium content of its meals are unfair. Because Ciszewski did not include this claim in his original ...

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