The opinion of the court was delivered by: Joan B. Gottschall United States District Judge
MEMORANDUM OPINION & ORDER
Before the court are Third Party Defendant SK & A Information Services, Inc.'s ("SKA's") motion to dismiss Count V of the Hal Lewis Group's third party complaint and SKA's motion to strike the crossclaims filed by Intellisphere, LLC. For the reasons stated below, the court grants in part and denies in part the motion to dismiss Count V of the Hal Lewis complaint, denies the motion to strike Intellisphere, LLC's cross-complaint, and gives Intellisphere, LLC leave to file its cross-complaint instanter.
Plaintiff Glen Ellyn Pharmacy, Inc. ("Glen Ellyn") originally filed suit against Meda Pharmaceuticals, Inc. ("Meda") in the Circuit Court of Cook County, and Meda removed the action to this court based on federal jurisdiction. Thereafter, Glen Ellyn amended its complaint to add the Hal Lewis Group, Inc. ("Hal Lewis") as an additional defendant. Glen Ellyn alleges that it received two unsolicited facsimile advertisements ("fax ads") for products and services relating to Meda's "Soma 250" product, and that Hal Lewis acted as Meda's agent in causing these fax ads to be sent. On information and belief, Glen Ellyn alleges the existence of a class of at least forty other businesses who also received unsolicited fax ads from Hal Lewis and Meda. The amended complaint states three counts: Count I alleges a violation of the Telephone Communications Privacy Act ("TCPA"), Count II alleges a violation of the Illinois Consumer Fraud Act ("Fraud Act"), and Count III states a claim for common law conversion.
Thereafter, Hal Lewis filed a third party complaint naming Intellisphere, LLC,*fn1
d/b/a/ Pharmacy Times ("Pharmacy Times") and SKA as defendants. In the complaint, Hal Lewis alleges that it entered into an agreement with Meda to provide advertising relating to Meda's Soma 250 product. At the request of Meda, Hal Lewis then attended a presentation by Pharmacy Times, during which presentation Pharmacy Times represented that it had a list of fax numbers for pharmacists and pharmacies that were willing to receive advertisements. Pharmacy Times had obtained those numbers from SKA, but neither Pharmacy Times nor SKA had obtained permission to send unsolicited advertisements to the owners of the fax numbers; in fact, according to Hal Lewis, SKA actually knew that it did not have permission to send faxes to those numbers. In reliance upon Pharmacy Times' representation, Hal Lewis contracted with Pharmacy Times to transmit the ads relating to the Soma 250 product. The ads were sent to Glen Ellyn on May 5, 2009 and May 20, 2009 without its permission or consent.*fn2 In its third party complaint, Hal Lewis alleges five counts: Counts I-IV are brought exclusively against Pharmacy Times, while Count V is a claim for contribution against both Pharmacy Times and SKA in the event that Hal Lewis is found liable to Glen Ellyn. SKA has moved to dismiss Count V under Federal Rule of Civil Procedure 12(b)(6), claiming both that Illinois law precludes an intentional tortfeasor from seeking contribution and that the TCPA and federal common law do not recognize a right to contribution.
About four months after Hal Lewis filed its third party complaint,
Pharmacy Times filed a cross-complaint against SKA.*fn3
Therein, Pharmacy Times accuses SKA of breach of contract,
negligent misrepresentation, and intentional misrepresentation.
Pharmacy Times further claims that SKA is estopped from denying that
SKA was authorized to send fax ads to the numbers at issue, and it
seeks contribution from SKA for any liability that might result from
the proceedings with Hal Lewis. Pharmacy Times never sought or
obtained leave to file its crossclaims, and SKA now moves to strike
the pleading. In addition to raising a number of other objections, SKA
argues that the disputes set forth are governed by a forum selection
clause that would require Pharmacy Times to litigate in California.
The court addresses each issue in turn.
In reviewing a motion to dismiss brought pursuant to Rule 12(b)(6), the court accepts all well-pleaded facts in the complaint as true, views the facts in the light most favorable to the non-moving party, and draws reasonable inferences in that party's favor. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010). But while "the bar to survive a motion to dismiss is not high, the complaint must 'contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quotation marks omitted)).
Although SKA's second motion nominally is a motion to strike, the court will evaluate the issue under Rule 15(a)-Pharmacy Times acknowledges that it should have sought leave before filing its cross-complaint, and the court requested supplemental briefing on the issue. The court will give leave to amend (and deny SKA's motion to strike) if "justice so requires," see Rule 15(a)(2), but "[j]ustice generally does not require such leave if a movant demonstrates 'undue delay, bad faith, or dilatory motive,' or if undue prejudice to the opposing party would result." Vitrano v. United States, 643 F.3d 229, 234 (7th Cir. 2011) (quoting Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007)). Here, SKA argues that the crossclaims cannot survive a motion to dismiss; if true, this also would be a proper basis for granting SKA's motion. See Arlin--Golf, LLC v. Vill. of Arlington Heights, 631 F.3d 818, 823 (7th Cir. 2011) ("[A] district court may deny a motion to amend 'if the proposed amendment fails to cure the deficiencies in the original pleading, or could not survive a second motion to dismiss.'" (quoting Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008)).
A. Count V of Hal Lewis's Third ...