United States District Court, C.D. Illinois, Urbana Division
DR. MARK W. STURDY d/b/a ROCHESTER VETERINARY CLINIC on behalf of itself and a class, Plaintiff,
MEDTRAK EDUCATIONAL SERVICES LLC, et al. Defendants.
COLIN S. BRUCE, District Judge.
On October 8, 2013, Plaintiff, Dr. Mark W. Sturdy, filed his Complaint (#1) against Defendants, Medtrak Educational Services LLC (Medtrak); Zoetis LLC; Zoetis Inc., f/k/a Pfizer Animal Health; Zoetis Products (collectively, the Zoeits Defendants); and John Does 1-10. On November 27, 2013, the Zoeits Defendants filed a Motion to Dismiss Class Action Complaint with Prejudice (#23). On December 3, 2013, Defendant Medtrak filed a Motion to Dismiss for Failure to State a Claim (#24). Plaintiff filed his Response (#27) to Defendants' motions on January 6, 2014. After a careful review of the arguments and documents submitted by the parties, this court concludes that Defendants' Motions (#23, #24) should be GRANTED in part and DENIED in part.
On April 7, 2011, Plaintiff received an unsolicited fax message from Medtrak that advertised products sold by the Zoetis Defendants. Plaintiff alleges that the fax was part of an advertising campaign, and therefore, it is reasonable to infer that the fax was sent to more than 20-40 people.
After receiving the unsolicited fax advertisement, Plaintiff filed a Complaint (#1) on behalf of himself and a putative class. The complaint contained five counts: Count I, a claim under the Telephone Consumer Protection Act (TCPA), 42 U.S.C. § 227; Count II, a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/2; and Counts III-V, Illinois common law claims for conversion, private nuisance, and trespass to chattels. On May 28, 2014, this court issued an Opinion (#30) denying class certification to Plaintiff.
On November 27, 2013, the Zoeits Defendants filed a Motion to Dismiss Class Action Complaint with Prejudice (#23). Defendant Medtrak filed a Motion to Dismiss for Failure to State a Claim (#24) on December 3, 2013. Medtrak's motion incorporated by reference the arguments advanced in the Zoetis Defendants' motion. Plaintiff filed his Response (#27) on January 6, 2014. The motions are fully briefed and ready to be ruled on.
I. Legal Standard
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) serves to test the sufficiency of the complaint, not to decide the merits of the case. See AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a motion to dismiss, the complaint need only contain sufficient factual allegations to "state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this standard, the allegations in the complaint must: (1) be detailed enough to "give the defendant fair notice of what the claim is and the grounds upon which it rests[;]'" and (2) "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level.'" E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 554, 555) (alteration omitted).
In considering a motion to dismiss for failure to state a claim, the court must evaluate the complaint in the light most favorable to the plaintiff, accepting as true all well-pled factual allegations and drawing all reasonable inferences in the plaintiff's favor. AnchorBank, 649 F.3d at 614. The court is generally limited to the allegations in the complaint, but it is well-settled that the court "may consider documents attached to or referenced in the pleadings if they are central to the claim, " Citadel Grp. Ltd. v. Wash. Reg'l Med. Ctr., 692 F.3d 580, 591 (7th Cir. 2012), such as the fax message attached here. See Exhibit A (#1-1).
A. Improper Pleading Format
Defendants first contend that Plaintiff's complaint must be dismissed because it improperly separates a single claim for relief into multiple counts. In support, Defendants cite Rossario's Fine Jewelry, Inc. v. Paddock Publications, Inc., 443 F.Supp.2d 976 (N.D. Ill. 2006), which criticized the plaintiff for "the mistaken practice of carving up a single claim (which is the relevant concept in federal pleading) by setting out different theories of recovery in different counts." Id. at 977 (citing N.A.A.C.P. v. Am. Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992)). However, this court finds that neither Rossario's nor N.A.A.C.P. ...