United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall, United States District Judge.
Brenda Buschle brought this action against Defendants Coach,
Inc., Coach Services, Inc. (collectively referred to as
“Coach”), and Greer Burns & Crain, Ltd.
(“GBC”). (Dkt. No. 1 at 19.) Defendants Coach and
GBC both separately move to dismiss Plaintiff's claims on
many theories, but the Court dismisses the case pursuant
to Illinois's one refiling rule pursuant to 735 ILCS
5/13-217. For the reasons set forth below, the Court grants
the Motions to Dismiss , .
Court takes the following allegations from the Complaint and
treats them as true for the purposes of this motion. See
Gillard v. Proven Methods Seminars, LLC., 388 F.
App'x 549 (7th Cir. 2010).
Buschle owns and operates an online business out of her home
in Cincinnati, Ohio selling new and used genuine designer
handbags under the trade name Designer Handbags Rescue. (Dkt.
No. 1, ¶ 1.) Until January 2016, Buschle used her
website to sell discounted new and used handbags throughout
the United States, including Coach handbags. (Id.,
¶¶ 7, 9.) Buschle spent significant time and money
investing in her reputation and generating traffic to her
website. (Id., ¶ 12.) She was successful and
consistently increased the business's revenues between
2012 and 2015. (Id., ¶ 14-16.)
behalf of Coach, GBC, a law firm, filed a lawsuit against
several alleged counterfeiters, including Designer Handbag
Rescue, in this district under Case No. 15-cv-2994 (J.
Darrah). (Dkt. No. 1, ¶¶ 4, 18.) In their
complaint, GBC and Coach alleged that Buschle was one of the
online counterfeiters who resided in China and sold
“unauthorized and unlicensed counterfeit
products” as a part of “an interrelated group of
counterfeiters” who were all selling products with
Coach's trademarks. (Id.) Defendants also filed
an Ex Parte Motion for Entry of a Temporary
Restraining Order, which included a Temporary Injunction, a
Temporary Transfer of the Defendant Domain Names, a Temporary
Asset Restraint, and Expedited Discovery. (Dkt. No. 1, ¶
20.) Defendants further requested an ex parte order
to seize Buschle's website under the Lanham Act.
(Id.) On April 16, 2015, Defendants proceeded to
take control of Buschle's domain name and website,
locking Buschle out of the website and effectively shutting
down her company's operations. (Dkt. No. 1, ¶ 22.)
Defendants also posted statements on Buschle's website,
such as: “This domain was previously held for the sale
of alleged counterfeit COACH products.” (Dkt. No. 1,
¶¶ 23-24.) Buschle alleges that her business
remained shut down and that the statements remained on her
website for more than 24 hours. (Dkt. No. 1, ¶¶
28.) When Buschle contacted Coach, Coach voluntarily
dismissed Designer Handbags Rescue and reactivated here
website “within hours.” (Dkt. 16 at 2.)
result of Defendants' actions, Buschle alleges that a
number of customers returned or canceled orders. (Dkt. No. 1,
¶ 31.) Designer Handbags Rescue's average monthly
revenues decreased by almost 50% in the second half of 2015
and profits were down to more than 45% per month as compared
to 2014. (Dkt. No. 1, ¶ 34.) Ultimately, Buschle shut
down Designer Handbags Rescue and her website in January 2016
after suffering “significant and irreparable
damage” as a result of Defendants' actions against
her and her company. (Dkt. No. 1, ¶ 35.)
represented by counsel, filed a complaint against Defendants
in Hamilton County, Ohio on February 4, 2016 with the same
claims she brings in the instant case. (Dkt. No. 16, Exhibit
1.) Buschle then filed a complaint in the U.S. District Court
for the Southern District of Ohio asserting the same claims
on April 14, 2016. (Dkt. No. 16 at 2, Exhibit 2.) On June 30,
2016, Buschle dismissed, without prejudice, her claims in
state court. (Dkt. No. 16-3, Exhibit 3.) The Southern
District of Ohio dismissed the Complaint for lack of personal
jurisdiction. (Dkt. 16-4 at 11) (Bucshle v. Coach, Inc.,
et al., No. 16-471, Dkt. No. 28 (S.D.OH March 28,
complaint must contain sufficient factual matter to state a
claim to relief that is plausible on its face to survive a
12(b)(6) challenge. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A claim is plausible on its face when the
complaint contains factual content that supports a reasonable
inference that the defendant is liable for the harm.
Id. The complaint should be dismissed only if the
plaintiffs would not be entitled to relief under any set of
facts that could be proved consistent with the allegations.
See Visiting Nurses Ass'n of Southwestern Indiana,
Inc. v. Shalala, 213 F.3d 352, 354 (7th Cir. 2000). In
making the plausibility determination, the Court relies on
its “judicial experience and common sense.”
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th
Cir. 2011) (quoting Iqbal, 129 S.Ct. at 1950). For
purposes of this motion, this Court accepts all well-pleaded
allegations in the complaint as true and draws all reasonable
inferences in the non-movant's favor. See Yeftich v.
Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013).
sues Defendants GBC and Coach for Conversion, Defamation,
Defamation Per Se, Unfair and Deceptive Trade
Practices under 815 ILCS 510, Violations of Lanham Act 15
U.S.C. § 1125(a)(1)(B), Tortious Interference with
Business Relations, Attorneys' Fees, Punitive Damages,
and Treble Damages. Buschle also sues Coach for Wrongful
Seizure under Lanham Act 15 U.S.C. § 1116(d)(11).
Defendants' Motions to Dismiss are granted because this
is Buschle's third attempt to file the same claims and
she is thus barred by the Illinois one refiling rule.
the Illinois one refiling rule, “a plaintiff who
voluntarily dismisses a suit ‘may commence a new action
within one year or within the remaining period of limitation,
whichever is greater.'” Carr v. Tillery,
591 F.3d 909, 914 (7th Cir. 2010) (quoting 735 ILCS
5/13-217). Plaintiffs are limited to one second bite at the
apple, and no more; “[t]he Illinois courts interpret
[Section 13-217] to mean that a plaintiff who voluntarily
dismisses a lawsuit may commence only one new action.”
Ibid. (collecting cases); see also Timberlake v.
Illini Hosp., 676 N.E.2d 634, 636 (1997) (“This
court has interpreted section 13-217 as permitting only one
refiling even in a case where the applicable statute of
limitations has not yet expired.”). This one-refiling
rule applies in federal court “because it is a rule of
preclusion, like res judicata; and a federal court is
required to give full faith and credit to records of
(including judgments in) state judicial proceedings.”
Carr, 591 F.3d at 914 (internal quotation marks
voluntarily dismissed her initial state court case in Ohio.
(Dkt. No. 16, Exhibit 1.) When she filed the same claims in
the Southern District of Ohio, the district court dismissed
Buschle's case for lack of personal jurisdiction. (Dkt.
No. 13 at 6.) Therefore, Defendants assert that Buschle's
Complaint constitutes the third refiling of the same claims
and her claims must be dismissed. See Carr, 591 F.3d
at 914 (“[A] plaintiff who voluntarily dismisses a suit
may commence only one new action.”) (emphasis
in original) (collecting cases.) Buschle does not contest
that these are the same claims that she already filed in
Ohio, but argues that: (1) the rule does not apply when the
initial action was filed in a foreign court and the second
action was ...