United States District Court, N.D. Illinois, Eastern Division
CARL LOWE and KEARBY KAISER, on behalf of themselves and others similarly situated, Plaintiffs,
CVS PHARMACY, INC., MINUTECLINIC, LLC, and WEST CORPORATION, Defendants.
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge
Carl Lowe and Kearby Kaiser (“Plaintiffs”), on
behalf of themselves and others similarly situated, have
brought this action against CVS Pharmacy, Inc., MinuteClinic,
LLC, and West Corporation (“Defendants”).
Plaintiffs' claims arise under the Telephone Consumer
Protection Act (TCPA), 42 U.S.C. § 227, et
seq., and the Illinois Automatic Telephone Dialers Act
(ATDA), 815 Ill. Comp. Stat. 305/1, et seq. They
allege Defendants used an automated system to place
unsolicited, prerecorded calls to Plaintiffs and others.
Defendants have moved to dismiss all claims against Defendant
MinuteClinic (“MinuteClinic”) and any claims
against the remaining Defendants that are based on a call to
Plaintiff Kaiser on September 11, 2013. Defendants maintain
that this call cannot serve as a basis for personal
jurisdiction, and thus move to dismiss under Federal Rule of
Procedure (“Rule”) 12(b)(2). For the reasons that
follow, Defendants' motion to dismiss  is denied.
September 11, 2013, Defendants CVS and MinuteClinic, by way
of Defendant West's auto-dialing service, placed an
unsolicited call to Kaiser's cell phone. Am. Compl.
¶ 36. Kaiser's cell phone number begins with the
area code “312, ” which is affiliated with
Chicago, Illinois, where Kaiser resides. Id. ¶
10; Pl.'s Mem. Opp'n Mot. Dismiss 2, ECF No. 245.
According to Defendants, Kaiser had previously visited a
MinuteClinic in Illinois in 2012 to receive a flu vaccine.
Def.'s Mem. Supp. Mot. Dismiss 2, ECF No. 223.
MinuteClinic contacted him “as part of a one-time
patient call program placed to telephone numbers associated
with MinuteClinic patients who had received flu shots across
the country in the prior flu season.” Id. The
call left the following prerecorded message:
This is MinuteClinic calling to let you know that flu shots
are now available. MinuteClinic is the medical clinic inside
your local CVS/pharmacy. We are open seven days a week,
including evenings and weekends. No appointment is necessary.
We also accept most insurance plans, including Medicare Part
B. Plus, you will receive a CVS/pharmacy 20% shopping pass
with your flu shot. So why wait? Come into your MinuteClinic
today. Please check our website at MinuteClinic-dot-com for
our clinic hours near you. Thank you for choosing
Am. Compl. ¶ 44. The call is the sole basis for
Kaiser's claims against MinuteClinic. Pl.'s Mem.
Opp'n at 3.
filed their complaint before this Court on May 20, 2014. As
part of their complaint, Plaintiffs alleged:
The Court has personal jurisdiction over Defendants and venue
is appropriate in this District because Defendants have
offices and retail locations here, Plaintiffs reside and
received the calls that are the subject of this
lawsuit here, and because a substantial portion of the
events giving rise to this cause of action occurred here.
Compl. ¶ 8, ECF No. 1 (emphasis added). In their answer
to the complaint, filed October 2, 2014, Defendants CVS and
The allegations contained in this paragraph set forth legal
conclusions to which no response is required. To the extent a
response is required, Defendants deny any characterizations
of wrongdoing on their part and otherwise deny the
allegations in this paragraph.
Answer ¶ 8, ECF No. 42. This case then proceeded for
almost two years as the parties engaged in discovery.
close of this period and the end of fact discovery,
Defendants deposed Plaintiff Kaiser. Pl.'s Mem.
Opp'n, Ex. 2. During the deposition, Defendants'
counsel inquired into the details of the September 11, 2013,
call. Kaiser testified that he could not remember who the
call was from-CVS or MinuteClinic-in part because he received
a number of unsolicited calls around that time and had only
listened to the September 11, 2013, call once in the last
three years. Id. at 61:16- 62:19. He then attempted
to recall where he was when he received the call. He stated,
“I did not answer my phone when I was on vacation in
2013, and I had some messages, and some of the messages were
even robocalls from CVS where they left messages.”
Id. at 62:16-19. The relevant exchange then
proceeded as follows:
Q (counsel): And where were you on vacation?
A (Kaiser): Thailand. Probably Thailand. I don't know.
Q: Did you have your cell phone with you?
A: No. Physically, I don't know. But it was physically
not turned on. I know that.
Q: Okay. Do you, usually, when you travel overseas, take your
phone with you?
Q. So - -
A: But I do not turn it on.
. . . .
Q: So when the September 11th, 2013 call came in, you were in