United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge
putative class action, Plaintiff Tartan Construction,
alleges that Defendants NES Rentals, NES Holdings, and United
Rentals charged two “illegitimate” fees as part
of their standard rental agreements for heavy equipment. 
¶ 3. Plaintiff claims that these fees breached the
rental agreements, unjustly enriched Defendants, and violated
the Illinois Consumer Fraud and Deceptive Trade Practices Act
(ICFA). Id. Defendants moved to dismiss all claims
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. . For the reasons explained below, this
Court grants Defendants' motion.
The Complaint's Allegations
rent heavy equipment to industrial construction customers
through a standard rental agreement.  ¶ 23. Along
with a rental fee, Defendants charge two other fees: (1) an
“environmental fee”; and (2) a fee for a
“limited damage waiver” (LDW). Id.
¶ 25. Defendants do not disclose to their customers how
they calculate the two additional fees. Id. ¶
says that Defendants misrepresent the environmental fee as a
means of recovering the costs of handling and disposing of
waste fluids, when in reality the amount of the environmental
fee bears no relation to any such costs. Id.
34. The rental agreement describes the environmental fee as
Customer acknowledges that it shall be charged a per item,
per invoice environmental fee for the handling and disposal
of waste oil and other fluids used in connection with the
operation and/or cleaning of the Equipment.
[39-1] § 18. Defendants charge a $10 per item
environmental fee on every invoice regardless of how much
equipment a customer rented, which type of equipment the
customer rented, and whether Defendant actually had to
dispose of any waste fluids  ¶¶ 35-36.
Plaintiff always timely paid the environmental fee.
Id. ¶ 42.
rental agreement does not contain the LDW. Id.
¶ 43. Instead, it refers to the LDW as follows:
Customer acknowledges that the Company's [LDW] policy was
explained at the time of entering into this Agreement. A copy
of the policy is available at all branches of the Company and
is available upon request. Customer acknowledges that it is
responsible for the Equipment and that any [LDW] entered into
is not insurance.
[39-1] § 17. Plaintiff alleges that, contrary to section
17's representations, Defendants do not explain anything
about the LDW to customers when entering into rental
agreements and do not make copies of the LDW available
because “no such ‘policy' exists.” 
¶ 44. Defendants charge 14% of total rental costs on
each invoice for the LDW. Id. ¶ 45.
the LDW purportedly waives Defendants' rights to recover
from renters for certain types of damage to equipment,
Plaintiff says that the LDW provides little or no value to
customers. Id. ¶ 46. Even if customers pay for
the LDW, Defendants' rental agreement still obligates
customers to maintain liability and property insurance for
the equipment, and Defendants rarely or never waive costs
under the LDW. Id. ¶¶ 48, 51-52. Plaintiff
alleges that Defendants deceive customers into believing both
that they must purchase the LDW and that the LDW confers a
meaningful benefit if equipment gets damaged. Id.
¶¶ 49, 57. Plaintiff timely paid the 14% LDW fee on
any applicable invoices from Defendants. Id. ¶
survive a motion to dismiss under Rule 12(b)(6), a complaint
must provide a “short and plain statement of the
claim” showing that the pleader merits relief,
Fed.R.Civ.P. 8(a)(2), so Defendants have “fair
notice” of the claim “and the grounds upon which
it rests, ” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). A complaint must also contain
“sufficient factual matter” to state a facially
plausible claim to relief-one that “allows the court to
draw the reasonable inference” that the defendant
committed the alleged misconduct. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). This plausibility standard “asks for more than
a sheer possibility that a defendant has acted
unlawfully.” Williamson v. Curran, 714 F.3d
432, 436 (7th Cir. 2013). Thus, “threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Limestone
Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th
evaluating a complaint, this Court accepts all well-pleaded
allegations as true and draws all reasonable inferences in
Plaintiffs' favor. Iqbal, 556 U.S. at 678. This
Court does not, however, accept legal conclusions as true.
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
On a motion to dismiss, this Court may consider the complaint
itself, documents attached to the complaint, documents
central to the complaint and to which the complaint refers,
and information properly subject to judicial notice.
Williamson, 714 F.3d at 436.
claims under the ICFA must meet Federal Rule of Civil
Procedure 9(b)'s heightened pleading requirements.
Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d
732, 736 (7th Cir. 2014). Rule 9(b) demands that claimants
alleging fraud “state with particularity the
circumstances constituting fraud.” To satisfy Rule
9(b), a plaintiff “ordinarily must describe the who,
what, when, where, and how of the fraud-the first paragraph
of any newspaper story.” Pirelli Armstrong Tire
Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631
F.3d 436, 441-42 (7th Cir. 2011) (internal quotation marks
omitted). Ultimately, a plaintiff must always inject
“precision and some measure of substantiation”
into fraud allegations. United States ex rel. Presser v.
Acacia Mental Health Clinic, LLC, 836 F.3d 770, 776 (7th
Cir. 2016) (internal quotation marks omitted).
preliminary matter, the rental agreement contains a
choice-of-law provision requiring that Illinois law govern
any disputes arising under the agreement. [39-1] § 15.
Under Illinois law, which this Court follows on choice-of-law
issues when sitting in diversity, courts honor a
contract's choice-of-law provision as long as the parties
have a valid contract and the chosen law does not violate
fundamental Illinois public policy. See Thomas v.
Guardsmark, Inc., 381 F.3d 701, 705 (7th Cir. 2004). The
latter requirement does not pose a hurdle here, and the
parties agree that they have a valid contract, see
 at 4;  at 12, so Illinois law controls.
Illinois law, this Court may interpret unambiguous contracts
as a matter of law. Avery v. State Farm Mut. Auto. Ins.
Co., 835 N.E.2d 801, 821 (Ill. 2005). In construing a
contract, this Court must focus on ascertaining and giving
effect to the parties' intent. Highland Supply Corp.
v. Ill. Power Co., 973 N.E.2d 551, 558 (Ill.App.Ct.
2012). Also, Illinois law instructs this Court to interpret
contract terms according to ...