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Hank Drager, Individually and On v. Bridgeview Bank and Meirtran

June 13, 2011

HANK DRAGER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
BRIDGEVIEW BANK AND MEIRTRAN, INC., DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant Bridgeview Bank's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) [6]; Plaintiff's motion to strike portions of Defendant Bridgeview Bank's answer and affirmative defenses [13]; and Plaintiff's motion for discovery [17]. For the following reasons, Defendant Bridgeview Bank's motion [6] is respectfully denied. Plaintiff's motion to strike [13] is granted in part and denied in part and Plaintiff's motion for discovery [17] is denied.

I. Background

A. Facts in Plaintiff's Amended Complaint*fn1

In his one-count complaint [10], Plaintiff alleges a violation of the Electronic Funds Transfer Act ("EFTA"), 15 U.S.C. § 1963 et seq. and Regulation E, 12 C.F.R. § 205.1 et seq. Plaintiff alleges that on November 1, 2010, he used an automated teller machine ("ATM") located at 4753 N. Broadway Avenue, in Chicago to withdraw $20 from his bank account. The ATM charged a $3.00 fee during the transaction, which was paid to Defendant Bridgeview Bank. Plaintiff alleges that as of November 1, 2010, there was no fee notice posted on or near the ATM that disclosed that users would be charged a fee for using the ATM. Plaintiff alleges that Defendant Bridgeview Bank ("Bridgeview") "maintains the Subject ATM and, therefore, is an ATM operator" (¶ 13) and that Defendant Meirtran ("Meirtran") was the owner and operator of the subject ATM. Plaintiff brings this action on behalf of himself and "all persons who were charged a transaction fee for the use of" the subject ATM.

B. Facts in Defendant's Answer

Bridgeview has answered the complaint [5].*fn2 In the answer, Bridgeview denies that it owns the subject ATM. (Ans. at ¶ 11). Further, Bridgeview asserts four affirmative defenses along with facts common to those defenses.

Plaintiff alleges that the subject ATM was installed on April 3, 2006 by Meirtran and that Meirtran, not Bridgeview, owns the ATM. (Id. at ¶¶ 2-3). The answer alleges that on November 26, 2006, Meirtran took a picture of the subject ATM showing that a notice was on the face of the ATM that told users that a fee would be charged for particular transactions. Bridgeview alleges that "[t]o the extent that any Meirtran employee were to see that any of its ATMs, including the Subject ATM, did not have a notice on it when it replenished that ATM, it would make notification of that fact, and have it immediately replaced." (Id. at ¶ 7). In early 2009, the fee notice was moved to below the tray where money is removed. On April 29, 2009, Meirtran took a picture of the Subject ATM showing the notice in that location. Further, as of April 29, 2009, there was an additional notice at the top of the machine that read "Bridgeview Bank Customers Use This ATM For Free." Defendants allege that "[i]f no fee notice was on the Subject ATM on November 1, 2010, then it was removed between April 29, 2009 and November 1, 2010." (Id. at ¶ 7).

Defendants attach an affidavit from Mike Boyd (Meirtran's president) as Exhibit 1 to their answer and counterclaims, which is intended to provide support for the above facts. The affidavit adds a few statements that are not found in the text of the counterclaims. For instance, Boyd swears that "[i]f no fee notice was on the Subject ATM on November 1, 2010 then it was removed between April 29, 2009 and November 1, 2010 by someone other than Meitran." (Boyd Aff. at ¶ 15).

II. Legal Standard For Rule 12(c) Motions

A Rule 12(c) motion for judgment on the pleadings permits a party to move for judgment after both the plaintiff's complaint and the defendant's answer have been filed. Fed. R. Civ. P. 12(c). Rule 12(c) motions are reviewed under the same standard as Rule 12(b)(6) motions to dismiss. Piscotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007).

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555, 569 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 562.

The court, in ruling on a motion for judgment on the pleadings, must "accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Forseth v. Village of Sussex, 199 F.3d 363, 364 (7th Cir. 2000). "Thus to succeed, the moving party must demonstrate that there are no material issues of fact to be resolved." Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). Courts "view the facts in the complaint in the light most favorable to the nonmoving party." Id. (quoting GATX Leasing Corp. v. National Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995)). "The main difference between a Rule 12(b) motion and a Rule 12(c) motion is that a Rule 12(b) motion may be filed before the answer to the complaint is filed, whereas, a Rule 12(c) motion may be filed "after the pleadings are closed but within such time as not to delay the trial." Id. at 452 n.3.

A court decides a motion for judgment on the pleadings under Rule 12(c) based upon a review of the pleadings alone. Northern Indiana Gun & Outdoor Shows, Inc., 163 F.3d at 452. The pleadings include the complaint, the answer, and any written instruments attached as exhibits, such as affidavits, letters, contracts, and loan documentation. Id. at 452-53; see also Arethas v. S/TEC Group, Inc., 2005 WL 991782, at *6 (N.D. Ill. 2005) ("although in ruling on a motion for judgment on the pleadings a court can consider affidavits attached to a complaint or an answer to the complaint, a court cannot consider affidavits that are not a part of the pleadings"). If the court considers matters outside the pleadings, the court should convert the motion for judgment on the pleadings into a motion for summary judgment. Id. at 453 n.5; see Fed. R. Civ. Proc. 12(d).

III. Plaintiff's Motion to Strike

Plaintiff has filed a motion to strike Exhibit 1 to Defendant's Affirmative Defenses in its entirety, and failing that, has asked the Court to strike ¶¶ 10, 11, 14, and 15 in that Exhibit. Plaintiff also asks the Court to strike Defendant's third and fourth affirmative defenses. Federal Rule of Civil Procedure 12(f) permits a court to strike from a pleading "any redundant, immaterial, impertinent, or scandalous matter." Motions to strike are generally disfavored, because they potentially serve only to delay litigation. ABN AMRO, Inc. v. Capital Intern. Ltd., 2007 WL 845046, at *3 (N.D. Ill. March 16, 2007) (citing Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989)). A district court has broad discretion to grant or deny a motion to strike. Id. (citing Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664--65 (7th Cir. 1992)).

First, Plaintiff asks the Court to strike the Boyd affidavit because it is "an attempt for * * * [the] president of Meirtran, to introduce self-serving, conclusory statements as evidence in support of Defendant's Rule 12(c) motion." (Mot. to Strike [13] at 2). Plaintiff argues that the Boyd affidavit improperly attempts to introduce facts "outside the pleadings" and accordingly Defendant's motion must be treated as one for summary judgment under Federal Rule of Civil Procedure 56. (Pl. Reply Mot. Strike [25] at 3).

As discussed above, a Court ruling on a motion filed pursuant to Rule 12(c) must consider "the pleadings alone," which includes any affidavit that a defendant attaches to an answer. Northern Indiana Gun & Outdoor Shows, Inc., 163 F.3d 449, 452 & n.4 (7th Cir. 1998). Accordingly, under Seventh Circuit law, the Court can consider the Boyd affidavit without converting Defendant's motion into a Rule 56 motion for summary judgment. Id. at n.5 (citing Dempsey v. Atchison, Topeka and Santa Fe Ry. Co., 16 F.3d 832, 835-36 (7th Cir. 1994)); see also Langone v. Miller, 631 F. Supp. 2d 1067, ...


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