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Lowe v. CVS Pharmacy, Inc.

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

February 9, 2017

CARL LOWE and KEARBY KAISER, on behalf of themselves and others similarly situated, Plaintiffs,


          John Z. Lee United States District Judge

         Plaintiffs 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 [223] is denied.


         On 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 MinuteClinic.

Am. Compl. ¶ 44. The call is the sole basis for Kaiser's claims against MinuteClinic. Pl.'s Mem. Opp'n at 3.

         Plaintiffs 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).[1] In their answer to the complaint, filed October 2, 2014, Defendants CVS and MinuteClinic responded:

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.[2] This case then proceeded for almost two years as the parties engaged in discovery.

         At the 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. ‘13.
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?
A: Yes.
Q. So - -
A: But I do not turn it on.
. . . .
Q: So when the September 11th, 2013 call came in, you were in ...

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