United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN UNITED STATES DISTRICT JUDGE
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 ; 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  is denied and
Grainger's motion for summary judgment  is granted
in part and denied in part.
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).
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).
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
of the advertisement can be found at Dkt. 179-9, p. 49; Dkt.
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).
Article III Standing
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.
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, ...