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Davies v. W.W. Grainger, Inc.

United States District Court, N.D. Illinois, Eastern Division

November 21, 2016

David Davies d/b/a Davies Home Services, Plaintiff,
v.
W.W. Grainger, Inc. and John Does 1-12, Defendants.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's and Defendant's cross motions for summary judgment [164, 169]. David Davies (“Davies”) originally filed a two count complaint on behalf of himself and a class of similarly situated individuals against W.W. Grainger (“Grainger”) alleging a violation of the Telephone Consumer Protection Act (“TCPA”) and a state law conversion claim. The Court declined to certify the class [67]; only Davies's individual claims remain. Both Davies and Grainger move for summary judgment on Davies's TCPA claim; Grainger moves for summary judgment on Davies's conversion claim. For the following reasons, Davies's motion for summary judgment [164] is denied and Grainger's motion for summary judgment [169] is granted in part and denied in part.

         Background

         The following facts are undisputed. In 2008, Grainger started marketing to small businesses via fax advertisements. (Dkt. 165 ¶ 6; Dkt. 171 ¶ 3). The advertisements promoted Grainger's products by offering them at a discount for a limited time and providing a special code to take advantage of the offer by telephone only. (Dkt. 165 ¶ 8).

         Grainger's records indicate that from February 1994 to September 2008, there are at least nine purchases attributable to Davies or his business. (Dkt. 171 ¶ 7). Grainger hired InfoUSA in 2009 to collect the fax numbers of small businesses in Grainger's database by combing through public records. (Dkt. 165 ¶ 18, 19; Dkt. 171 ¶ 10, 12). InfoUSA obtained Davies's fax number published in editions of the Illinois North Shore region Yellow Pages and Business White Pages. (Dkt. 171 ¶ 12).

         On December 2, 2009, Grainger sent Davies a single fax. (Dkt. 165 ¶ 10; Dkt. 171 ¶ 4). Grainger admits that the fax was an advertisement and that it was sent by fax transmission. (Dkt. 165 ¶¶ 11, 12). Davies's fax machine printed the advertisement, thereby consuming Davies's paper and ink. (Dkt. 165 ¶ 14). Grainger did not write or call Davies to expressly request permission to send the advertisement. (Dkt. 165 ¶ 21). The advertisement contained the following notice:

If you do not wish to receive faxes from Grainger, please call 1-888-739-4920 extension 1732 and enter the fax number(s) to which you no longer wish to receive correspondence, or fax your request to 1-866-404-3933. Our failure to comply with your request within 30 days of receipt is unlawful.

         A copy of the advertisement can be found at Dkt. 179-9, p. 49; Dkt. 171-4.[1]

         Legal Standard

         Summary judgment is appropriate where the pleadings, depositions, admissions and affidavits demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of fact exists only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001).

         Discussion

         a. Article III Standing

         As an initial matter, the Court must address Grainger's contention that Davies lacks Article III standing. Grainger argues that Davies cannot assert any injury in fact as a result of Grainger's purported procedural violation of the TCPA - its failure to include a compliant opt-out notice on the fax advertisement.

         The Court previously held that Davies had standing to bring his TCPA claim. Davies v. W.W. Grainger, Inc., No. 13-cv-3546, 2016 WL 1298667, *2 (N.D. Ill. Apr. 4, 2016) (observing that the Seventh Circuit, at the time, did not require proof of injury to recover where statutes like the TCPA afforded parties statutory damages). Since then, the Supreme Court has made clear that a plaintiff must allege a “concrete” injury, not just a procedural violation divorced from harm, to establish Article III standing. Spokeo, Inc. v. Robins,136 S.Ct. 1540, 1548-49, 194 L.Ed.2d 635 (2016); see also Diedrich v. Ocwen Loan Servicing, LLC, __ F.3d __, 2016 WL 5852453, *2 (7th Cir. Oct. 6, ...


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