United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
L. ALONSO United States District Judge
the Court is the defendants' Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss Counts III and IV of
plaintiffs' First Amended Class Action Complaint as well
as defendant Sears Holdings Corporation , which is
granted in part and denied in part for the reasons explained
below. Also before the Court are plaintiffs' objections
 to Magistrate Judge Mason's rulings on two of
plaintiffs' discovery motions, which are overruled for
the reasons explained below.
action, plaintiffs Nina Greene and Gerald Greene, who are
Pennsylvania residents, complain that from 1994 to 2014, they
entered into and paid for several appliance-service
agreements with the Sears, Roebuck and Company and Sears
Protection Company that did not actually cover the service on
their products. Plaintiffs also sue Sears Holdings
Corporation (“Sears Holdings”). Defendants'
motion to dismiss plaintiffs' previous complaint was
granted in part and denied in part. The Court granted the
motion as to Sears Holdings and dismissed it from this suit.
The Court also granted the motion as to plaintiffs'
claims for unjust enrichment and violation of the Illinois
Consumer Fraud Act (“ICFA”), which were dismissed
subsequently filed the First Amended Class Action Complaint,
which asserts claims for breach of contract (Count I); unjust
enrichment (Count II); violation of the ICFA (Count III); and
violation of Pennsylvania's Unfair Trade Practices and
Consumer Protection Law (“PCPL”) (Count IV). (ECF
No. 51, Compl.)
Motion to Dismiss 1. Legal
evaluating the sufficiency of a complaint, the Court
construes it in the light most favorable to the plaintiffs,
accepts as true all well-pleaded facts therein, and draws all
reasonable inferences in plaintiffs' favor.
Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939,
946 (7th Cir. 2013). “[A] complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations” but must contain “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
Sears Holdings Corporation
Court previously dismissed Sears Holdings as a defendant
because plaintiffs' allegations established that it was
not a party to the service agreements and plaintiffs offered
no other basis for holding it liable. That remains the case
with the amended complaint. Plaintiffs argue that they have
stated unjust enrichment and consumer fraud claims against
Sears Holdings. The Court disagrees. Although plaintiffs have
added allegations about Sears Holdings' employees'
general involvement in drafting, pricing, marketing, and
handling claims related to service protection agreements, as
well as Sears Holdings' operation of call centers that
handle questions about products and services, plaintiffs do
not allege any facts from which it can be reasonably inferred
that Sears Holdings retained any benefit as a result of
plaintiffs' agreements. Plaintiffs therefore fail to
state an unjust enrichment claim against Sears Holdings.
See Galvan v. Nw. Mem'l Hosp., 888 N.E.2d 529,
541-42 (Ill.App.Ct. 2008) (affirming dismissal of unjust
enrichment claim where plaintiff did not allege that
defendant had unjustly retained any benefit).
the consumer fraud claims, plaintiffs fail to allege any
facts from which it can be inferred that Sears Holdings, in
particular, made any misrepresentations to them or otherwise
engaged in deceptive practices. Accordingly, plaintiffs also
fail to state consumer fraud claims against Sears Holdings.
See Lagen v. Balcor Co., 653 N.E.2d 968, 976-77
(Ill.App.Ct. 1995) (stating that a plaintiff must
“allege some sort of deception by the defendant to
avoid dismissal” of an ICFA claim); Garczynski v.
Countrywide Home Loans, Inc., 656 F.Supp.2d 505, 512-13
(E.D. Pa. 2009) (dismissing PCPL claim against mortgage
lender where the only misrepresentation plaintiffs alleged
was by a different defendant and the claim against the lender
was merely a threadbare recital of the claim's elements).
The Court therefore dismisses Sears Holdings as a defendant.
Defendants seek a with-prejudice dismissal. Because
plaintiffs do not seek leave to amend in the event of Sears
Holdings' dismissal, and plaintiff were previously given
the opportunity to replead claims against Sears Holdings and
still have failed to do so, the dismissal is with prejudice.
See Agnew v. NCAA, 683 F.3d 328, 347 (7th Cir. 2012)
(leave to amend need not be granted when a party has had
multiple opportunities to amend but failed to cure a
III (Illinois Consumer Fraud Act)
Court set out in its previous opinion and order, the Seventh
Circuit has said that a nonresident plaintiff may sue under
the ICFA only if the circumstances relating to the alleged
fraudulent transaction occurred mostly in Illinois.
Crichton v. Golden Rule Ins. Co., 576 F.3d 392, 396
(7th Cir. 2009) (citing Avery v. State Farm Mut. Auto.
Ins. Co., 835 N.E.2d 801, 853-54 (Ill. 2005)). The Court
dismissed plaintiffs' ICFA claim, noting that it was
alleged or reasonable to infer from the allegations that
although Sears is in Illinois, plaintiffs live in
Pennsylvania; they entered into the agreements with Sears and
thus were allegedly deceived in Pennsylvania; they called
from Pennsylvania to request service on their treadmill; they
were in Pennsylvania when they learned that their products
were not covered by the agreements; and the appliances that
were the subject of the agreements are in Pennsylvania. (ECF
No. 48, Mem. Op. & Order at 6.) Because the allegations
suggested that most of the circumstances underlying the
alleged fraud occurred in Pennsylvania, the Court concluded
that plaintiffs do not have statutory standing to sue under
First Amended Complaint, plaintiffs add allegations about
general operations and procedures concerning service
agreements, which take place at Sears's headquarters in
Illinois. Much of the alleged conduct (such as the handling
of claims under the agreements and the maintenance of
databases used to input customer claims) has nothing to do
with the allegedly deceptive conduct, and the remaining
alleged conduct is not specific to plaintiffs; as defendants
point out, none of plaintiffs' new allegations address
the circumstances under which plaintiffs purchased their
service agreements or when they learned that their purchases
were not covered. The new allegations at most support an
inference that the alleged deceptive course of conduct
emanated from Illinois, but that is insufficient to support
an ICFA claim. See Avery, 835 N.E.2d at 855 (no ICFA
claim where the only connection with Illinois is the
defendants' headquarters or the fact that a scheme
“emanated” from Illinois). Plaintiffs'
allegations still suggest that most of the ...