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Luis Herrera v. Gale Landers

November 27, 2012

LUIS HERRERA
v.
GALE LANDERS, ET AL.



Name of Assigned Judge or Magistrate Judge Blanche M. Manning Sitting Judge if Other than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The defendants' motion to dismiss [23] is granted as follows: Count I is dismissed with prejudice; the court declines to exercise jurisdiction over the remaining state law claims and so Counts II - V are dismissed without prejudice to being refiled in state court. The clerk is directed to enter a Rule 58 judgment and terminate this case from the court's docket.

O [ For further details see text below.] Docketing to mail notices.

00:00

STATEMENT

Plaintiff Luis Herrera is a member of the Fitness Formula chain of fitness clubs. Herrera filed a putative class action complaint against its owner, Gale Landers, as well as the various corporate entities that make up the club, alleging that they charged Herrera in excess of the parties' agreement in violation of the Electronic Fund Transfers Act (Count I), see 15 U.S.C. § 1693 et seq., the Illinois Physical Fitness Services Act (Count

II), see 815 Ill. Comp. Stat. 645/1 et seq., and the Illinois Consumer Fraud Act (Count III), see 815 Ill. Comp. Stat. 505/1 et seq. He also alleges claims of breach of contract (Count IV) and conversion (Count V). The defendants responded with a motion to dismiss the complaint for failure to state a claim. For the reasons that follow, the motion to dismiss Count I is granted, and the court declines to exercise jurisdiction over the remaining state law claims.

BACKGROUND

The following facts are taken from the allegations of the complaint and deemed to be true for purposes of resolving the motion to dismiss. In March 2007, Luis Herrera enrolled in a membership at the Fitness Formula Club in Oak Park, Illinois. As part of the enrollment process, he signed a Membership Agreement committing to a minimum 12-month membership at a rate of $59.95 a month. Under the terms of the Membership Agreement, Herrera agreed to "pay all charges through EFT [Electronic Funds Transfer]" and authorized his bank to make EFT payments to Fitness Formula. Membership Agreement (attached to Complaint [1-1] as Exhibit A) at 1 and ¶ 5. The Membership Agreement also provides that Fitness Formula "reserves the absolute right to increase your dues." Id. ¶ 5.

After the initial 12-month period, the "membership may be terminated at any time with 60 days written notice by certified or registered mail and the return of your membership card(s)." Id. Ex. A at 1. However, elsewhere the Membership Agreement provides that in the case of "[m]onth-to-month memberships . . . [m]ember must provide the Club with (45) forty five days written notice prior to the last day of using the Club and must return membership card(s)." Id. ¶ 9.

Herrera fulfilled his minimum 12-month term and for years continued his membership at the monthly rate of $59.95. Then in a letter dated December 28, 2011, Fitness Formula wrote to Herrera to advise him that in "March 2012 your monthly membership dues payment will be $114.95. Please note this increase is only for March 2012. . . . Effective April 2012 your monthly membership dues payment will return to $59.95." Complaint [1-1], Exhibit B. During the first week of March 2012, Fitness Formula debited Herrera's account in the amount of $114.95.

Herrera then filed the instant suit. In his complaint, which he brings individually and on behalf of several putative classes, he alleges five counts. In Count I, he alleges that the single-month dues increase violated the Electronic Funds Transfer Act, because it exceeded the electronic fund transfers he had preauthorized. See 15 U.S.C. § 1963e. In Count II, he alleges that the defendants violated the Illinois Physical Fitness Services Act by assessing charges beyond those specified in his Membership Agreement. See 815 Ill. Comp. Stat. 645/9(c), 10(a). In Count III, he alleges that the defendants violated the Illinois Consumer Fraud Act by giving insufficient notice in advance of the dues increase and by knowingly violating the Illinois Physical Fitness Services Act. See 815 Ill. Comp. Stat. 505/2, 2Z. In Count IV, he alleges the defendants breached the Membership Agreement. Finally, in Count V he alleges a claim of conversion.

The defendants have filed a motion to dismiss the complaint in its entirety for failure to state a claim. Specifically, the defendants contend that the Membership Agreement explicitly allowed them to raise monthly dues after the expiration of the initial 12-month membership term and, therefore, the increase was authorized and did not violate any federal or state law, or constitute a breach of contract or conversion. Meanwhile, Herrera filed a motion to strike a portion of the defendants' reply memorandum, although the ...


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